Monday, December 7, 2020

Spousal Misappropriation - A Special Breed of Insider Trading Action

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.

December 7, 2020 in Ann Lipton, Corporate Governance, Joan Heminway, Securities Regulation, White Collar Crime | Permalink | Comments (0)

Sunday, December 6, 2020

A Purposive Approach to Corporate Governance Sustainability - Lécia Vicente Guest Post

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. 

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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."

Continue reading

December 6, 2020 in Business Associations, Corporate Governance, Corporate Personality, Corporations, CSR, Joan Heminway, Law and Economics, Management, Social Enterprise | Permalink | Comments (0)

Friday, December 4, 2020

Introducing Our December Guest Blogger - Lécia Vicente

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.

December 4, 2020 in Comparative Law, International Business, International Law, Joan Heminway | Permalink | Comments (0)

Monday, November 30, 2020

Hiring Announcement: Pace Law

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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, mpollans@law.pace.edu.

November 30, 2020 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, November 23, 2020

Teaching Through the Pandemic - Part X: Hollywood Squares and Giving Thanks!

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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. 

#HollywoodSquares 
#GiveThanks

November 23, 2020 in Joan Heminway, Teaching | Permalink | Comments (0)

Monday, November 16, 2020

Relational Contracts in a COVID-19 World

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.

November 16, 2020 in Contracts, Joan Heminway, M&A | Permalink | Comments (2)

Monday, November 9, 2020

Hiring Announcement - Alabama Law

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 (facappts@law.ua.edu).

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

November 9, 2020 in Joan Heminway, Jobs | Permalink | Comments (0)

Monday, November 2, 2020

Political and Corporate Governance (and a Note on Mindfulness, for Good Measure)

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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 . . . .

Voting-2

November 2, 2020 in Corporate Governance, Joan Heminway, Shareholders, Teaching | Permalink | Comments (2)

Tuesday, October 27, 2020

2020 American Bar Association LLC Institute - Free for Law Students!

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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.

October 27, 2020 in Conferences, Joan Heminway, LLCs, Teaching, Unincorporated Entities | Permalink | Comments (1)

Monday, October 26, 2020

Chiarella at 40: Upcoming Conference

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The NYU Pollack Center for Law & Business, Indiana University Maurer School of Law, and Securities and Exchange Commission Historical Society invite you to a virtual program entitled "Insider Trading: Honoring the Past|A Program Commemorating the 40th Anniversary of Chiarella v. United States," which will take place on Thursday, November 5th from 10am-noon Eastern Time.

The program will explore the fascinating backstories of the Chiarella prosecution and the Supreme Court argument as well as the SEC’s and DOJ’s insider trading enforcement strategies in the wake of the Court’s ruling. The Chiarella case is also the subject of Donna Nagy’s recent essay, Chiarella v. United States and its Indelible Impact on Insider Trading Law.

A webinar link will be circulated to all those who RSVP, which you can do here. Conference details and schedule are below.

Conference Organizers:

Stephen Choi, Murray and Kathleen Bring Professor of Law, NYU School of Law, Co-Director Pollack Center for Law and Business
Donna M. Nagy, C. Ben Dutton Professor of Law, Indiana University Maurer School of Law
Jane Cobb, Executive Director, SEC Historical Society

Schedule:

10:00am Welcome by Stephen Choi, Murray and Kathleen Bring Professor of Law, NYU School of Law, Co-Director Pollack Center for Law and Business

10:10-11:10am    Session I: The Chiarella Prosecution and Supreme Court Litigation

John S. Siffert, Co-Founding Partner, Lankler Siffert Wohl; Adjunct Professor—NYU School of Law (Assistant US Attorney in the SDNY 1974-1979, prosecuted the Chiarella case and argued the 2nd Circuit appeal)
John “Rusty” Wing, Partner, Lankler Siffert Wohl (Chief of the Securities and Business Fraud Unit for the SDNY’s U.S. Attorney’s Office 1971-1978)
Hon. Judge Jed S. Rakoff, U.S. District Judge SDNY (Chief of the Securities and Business Fraud Unit for the SDNY’s U.S. Attorney’s Office 1978-1980)
Stanley S. Arkin, founding member of Arkin Solbakken (represented Vincent Chiarella at his criminal trial, 2nd Circuit appeal, and argument before the Supreme Court)
• Panel Moderator: Donna M. Nagy, C. Ben Dutton Professor of Law, Indiana University Maurer School of Law

11:10am-12:00pm    Session II: The SEC and DOJ’s Response to the Supreme Court’s Chiarella Decision

Donald C. Langevoort, Thomas Aquinas Reynolds Professor of Law, Georgetown University Law Center (SEC Special Counsel, Office of General Counsel, 1978-1981)
Lee S. Richards III, Co-Founding Partner, Richards Kibbe & Orbe (Assistant US Attorney in the SDNY 1977-1983, prosecuted US v. Newman based on the misappropriation theory advanced in, but left undecided by, the Court’s Chiarella ruling)
Hon. Judge Jed S. Rakoff, U.S. District Judge SDNY (SDNY Fraud Unit Chief during the Newman investigation, later served as defense counsel in Carpenter v. United States)
• Panel Moderator: Robert B. Thompson, Peter P. Weidenbruch, Jr. Professor of Business Law Georgetown University Law Center

October 26, 2020 in Conferences, Joan Heminway, Securities Regulation | Permalink | Comments (0)

The Sharing Economy, Autonomous Vehicles, and Such . . . .

Although my UT Law colleague Greg Stein is perhaps most well known for his work in the area of real estate law (development, finance, land use, etc.--see his SSRN page here), of late, he has been focusing increased attention on issues at the intersection of technological innovation and economic enterprise.  I have been interested in and engaged by this new twist to his research, thinking, and writing.  This post promotes two works he has completed that occupy this scholarly space, the first of which was recently published in the Brooklyn Law Review and the second of which is forthcoming in the Florida State University Law Review.

The Brooklyn Law Review piece is entitled "Inequality in the Sharing Economy."  The SSRN abstract follows.

The rise of the sharing economy benefits consumers and providers alike. Consumers can access a wider range of goods and services on an as-needed basis and no longer need to own a smaller number of costly assets that sit unused most of the time. Providers can engage in profitable short-term ventures, working on their own schedule and enjoying many new opportunities to supplement their income.

Sharing economy platforms often employ dynamic pricing, which means that the price of a good or service varies in real time as supply and demand change. Under dynamic pricing, the price of a good or service is highest when demand is high or supply is low. Just when a customer most needs a good or service – think bottled water after a hurricane – dynamic pricing may price that customer out of the market.

This Article examines the extent to which the rise of the sharing economy may exacerbate existing inequality. It describes the sharing economy and its frequent use of dynamic pricing as a means of allocating scarce resources. It then focuses on three types of commodities – necessities, inelastic goods and services, and public goods and services – and discusses why the dynamic pricing of these three types of commodities raises the greatest inequality concerns. The Article concludes by asking whether some type of intervention is warranted and examining the advantages and drawbacks of government action, action by the private sector, or no action at all.

The title of the article that is forthcoming in the Florida State University Law Review is "The Impact of Autonomous Vehicles on Urban Land Use Patterns."  The SSRN abstract for this article is set forth below.

Autonomous vehicles are coming. The only questions are how quickly they will arrive, how we will manage the years when they share the road with conventional vehicles, and how the legal system will address the issues they raise. This Article examines the impact the autonomous vehicle revolution will have on urban land use patterns.

Autonomous vehicles will transform the use of land and the law governing that valuable land. Automobiles will drop passengers off and then drive themselves to remote parking areas, reducing the need for downtown parking. These vehicles will create the need for substantial changes in roadway design. Driverless cars are more likely to be shared, and fleets may supplant individual ownership. At the same time, people may be willing to endure longer commutes, working while their car transports them.

These dramatic changes will require corresponding adaptations in real estate and land use law. Zoning laws, building codes, and homeowners’ association rules will have to be updated to reflect shifting needs for parking. Longer commutes may create a need for stricter environmental controls. Moreover, jurisdictions will have to address these changes while operating under considerable uncertainty, as we all wait to see which technologies catch on, which fall by the wayside, and how quickly this revolution arrives. This Article examines the legal changes that are likely to be needed in the near future. It concludes by recommending that government bodies engage in scenario planning so they can act under conditions of ambiguity while reducing the risk of poor decisions.

These articles offer interesting perspectives on the need for and desirability of legal or regulatory change as a response to existing and inevitable ripple effects of the new ways we engage with technology and use it in our lives--in commerce and in the more personal aspects of our existence--whether those effects are felt in the socio-economic landscape or the land use realm.  Many business law academics have been researching and writing about these relationships between and among legal and regulatory rules, technological innovation, and shifts in commercial and personal behavioral patterns.  Greg's contributions to this body of work are both compelling and thoughtful.  I appreciate his insights.

October 26, 2020 in Commercial Law, Joan Heminway, Law and Economics, Real Property, Technology | Permalink | Comments (0)

Monday, October 12, 2020

Teaching Through the Pandemic - Part IX: Students Teaching Themselves, Each Other, and Us

On Friday night, I finished five days of group oral midterm exam appointments with my Business Associations students.  (I wrote a law review article on these group oral midterms five years ago, in case you are interested in background and general information.)  It is an exhausting week: twenty-one 90-minute meetings with groups of three students based on a specific set of facts.  And this year, of course, the examinations were hosted on Zoom, like everything else.  Especially given social distancing, mask-wearing, and the overall hybrid instructional method for the course (about which I wrote here), I admit that I headed into the week a bit concerned about how it all would go . . . .

The examination is conducted as a simulated meeting of lawyers in the same law office--three junior lawyers assisting in preparing a senior colleague for a meeting with a new client.  The student teams are graded on their identification and use of the applicable substantive law. I was pleased to find that the teams scored at least as well overall and individually as they typically do.  That was a major relief.  I had truly wondered whether students would be less well prepared in light of the mixed class format and the general distractions of the pandemic.  The students were, however, well prepared.  It was clear each student had achieved individual mastery of a good chunk of the course substance.   It also was clear that, in preparing for and taking the examination as a group, the students had expanded their base of knowledge.  Several teams were so well versed that they were able to point out--in a collegial manner--an error in one of my teaching materials, which I since have corrected.

But what really wowed me were the intangibles.  Each team was earnest and focused during the entire examination meeting.  I was awed by the dedication and diligence of my students in executing on a group oral examination in this unusual and stressful pandemic.  Moreover, team members uniformly treated each other with respect, courtesy, patience, and compassion.  In the end, it was one of the best teaching experiences I have had in over twenty years as a law professor.  I could not be more grateful for the work that my students put into studying for and carrying through on the examination, and I am highly motivated to work with them to cover the remaining material in the course (more on corporations!) in the weeks to come.

Although I undoubtedly need additional time to reflect on the exams more deeply (and I am committed to undertake that deeper reflection before I share more comprehensive observations at the Association of American Law Schools Annual Meeting in January), I am extremely pleased with the overall results of these virtual group oral examinations in meeting my teaching and learning objectives for the course.  Icing on the cake?  Two students (on separate examination teams) thanked me for the exam before leaving the examination Zoom meeting, and a third student, in communicating with me on another matter over the weekend, noted in passing: "I actually enjoyed the midterm and thought it worked really well on zoom and was a great format to get to know the material and other students especially with the circumstances this semester!"  If the examination format was able to overcome some of the social and mental isolation so many of us have been feeling over the course of the semester, that certainly is a surprise bonus.  As we all know, we learn from our students every day . . . .

Oh, and I almost forgot to mention that one team went out of its way to show that its members were "in role" for the examination as a simulation exercise.  They created their own custom law firm logo Zoom background (based on the firm name--my name plus that of my intellectual property law colleague, Gary Pulsinelli--set forth at the top of the memo I sent to them that included the facts for use in the examination).  It was a hoot!  I have included a screenshot below.  This definitely put a smile on my face!

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October 12, 2020 in Business Associations, Joan Heminway, Law School, Teaching | Permalink | Comments (1)

Monday, October 5, 2020

The Business Law Prof Blog Symposium Goes Virtual!

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The fourth annual Business Law Prof Blog symposium, Connecting the Threads, is happening, despite the pandemic.  We are proceeding in a virtual format, hosted on Zoom on Friday, October 16.  More information is available here.

The line-up includes an impressive majority of our bloggers speaking on a wide range of topics from shareholder proposals to social enterprise, opting out of partnership, and much more.  Most papers will have a faculty and student discussant.  My submission, “Business Law and Lawyering in the Wake of COVID-19,” is coauthored with two students and carries one hour of Tennessee ethics credit.  While I wish we could host everyone in person in Knoxville, it always is an amazing day when we all get together.  I look forward to learning more about what everyone is working on and hearing what everyone has to say.

October 5, 2020 in Ann Lipton, Colleen Baker, Conferences, Haskell Murray, Joan Heminway, Joshua P. Fershee, Marcia Narine Weldon, Stefan J. Padfield | Permalink | Comments (0)

Monday, September 28, 2020

Teaching Through the Pandemic - Part VIII: A Three-Ring Circus

BLPB(CircusPhoto)Photo Credit: Pixabay

With almost six weeks of hybrid Business Associations classes now under my belt (and many more to go), I wanted to share a bit more about my experience teaching in the hybrid classroom.  This follows and builds on my post from the beginning of the semester offering initial impressions (based on my Professional MBA teaching experience).  As I noted in that post, technology can differ from classroom to classroom.  As a result, my observations here (which are based on a hybrid course with an in-class projection system featuring a camera  and document camera and an online component hosted on Zoom), may not hold in other teaching environments.  Hopefully, however, some of what I have to say here may be useful to some of you . . . .

Teaching a hybrid course is a bit like managing a three-ring circus.  Ring #1 is your in-class student population, #2 is your online students population, and #3 is your technology.  It is a lot to pay attention to.  I find it more than a bit exhausting.

I have 63 students in total in Business Associations this fall.  That is a bit low but within a normal range for that course in the fall semester.  Six of the students are "synchronous online only"; the remaining 57 rotate into and out of class--roughly half attending in person Mondays and every other Friday and the remainder attending in person on Wednesday and alternate Fridays.  I have a "producer" teaching assistant who participates online to (1) monitor the chat for me, (2) encourage student camera usage and microphone muting, and (3) help handle breakout room monitoring.  She also has helped to identify issues with sound--in particular when online folks are having trouble hearing their me or in-person colleagues.

My biggest gaffs so far include the following:

  • Clicking on "Leave Meeting" instead of closing the chat box as I was about to begin class and, as a result, kicking all of my online students out of class;
  • "Pinning" (highlighting) the video footage of the wrong student named Morgan for projection on the in-class screen (thinking I had called on her--but there are two women named Morgan in the class) and not realizing the mistake because the video of the other Morgan was so dark; and
  • Calling for tech help when the in-room camera was not capturing/showing video (my Zoom square was black--showing no video), when, in fact, the issue was that my Zoom video had defaulted to the document camera (which was not then deployed).

Notwithstanding these issues, based on the first writing assignment in the course and questions during my office hours, students in the course are learning!  Business Associations is hard to learn (and teach) in a traditional classroom environment.  The hybrid classroom is not ideal for many reasons--including without limitation the fractured attention span created by the three-ring-circus.  I truly feared that the combined experience of teaching Business Associations in a hybrid environment would be overwhelming for students.  But by speaking loudly, repeating student questions and comments, reaching out visually to students in both environments as directly as possible, and keeping technology usage simple and targeted, I seem to be communicating relevant information effectively, and as a group, we seem to be staying engaged with each other.  Fingers crossed all of that continues . . . .

I would be missing an important aspect of all of this if I did not mention my biggest pandemic teaching silver lining so far: feeling the love of my students--seeing them come to class in person, complying with numerous restrictions on their lives. and hearing from them in a positive way.  The number of students who have reached out in genuine ways to thank me for working hard on their behalf to produce class has been so gratifying.  This past week, I even had a student from last year reach out to check in on me.  The patience, flexibility, and compassion of my students has been remarkable.

So, I am surviving, and even striving to thrive.  It is like learning how to teach all over again some days.  But the students make it all worthwhile. 🧡

 

September 28, 2020 in Business Associations, Joan Heminway, Teaching, Technology | Permalink | Comments (0)

Monday, September 21, 2020

Teaching Through the Pandemic - Part VII: Technology Experiments

As we continue to move through the Fall 2020 semester in "pandemic mode" (whatever that may be for you), the investments of colleagues in their teaching continues to amaze me.  The number of teaching webinars and conference panels has been truly awesome, starting in the spring and continuing through the present.  Social media posts on Facebook and Twitter offer individualized tips and the opportunity for innovators to build from them and post their responsive comments and additional advice.  My friend Jessica Erickson (Richmond Law) wrote an excellent series of Prawfsblog posts at the end of the summer, the last of which can be found here (with links to the earlier posts in the series).  Law faculties (including my own) are checking in with each other on challenges and victories on a regular basis.  Although the experiences of others may be different, I have felt supported (and very much like I am part of a team) the whole way along.

Among the more stimulating--and daunting--parts of pandemic teaching presentations and conversations are those relating to the introduction of new teaching technologies.  We have all dealt with this part of COVID-19 teaching in some respects and in our own ways.  Some of us are more comfortable with technology than others.  There's Zoom and the like, of course, but then there also are routers, and cameras, and lighting, and more.  (I had never heard of a "ring light,", for example, until the COVID-19 pandemic was in full force.)  I have been impressed by the extent to which colleagues not only have found technological solutions to some of the novel teaching issues that have arisen during the pandemic, but also have been willing to promote these solutions to colleagues and educate them on their use.

Over the weekend.  I became aware that my UT Law colleague Glenn Reynolds had written a short piece on his use of a relatively simple three-camera system he has constructed (in his pool house!) to improve the production quality of his online classes.  He is teaching exclusively online this semester.  The piece, TIRED OF LOOKING GRAY AND BORING ONLINE? A SIMPLE 3-CAMERA TV STUDIO/CLASSROOM FOR LIVELY ONLINE TEACHING, is posted on SSRN here.  The exceedingly short abstract is as follows:

Tired of the dreary webcam-look in my online classroom, I created a fairly simple and reasonably inexpensive three-camera studio using real video cameras for online teaching. This paper outlines how it was done, and provides suggestions for simpler, cheaper alternatives that are still far superior to traditional webcam approaches.

Glenn includes photographs in his brief treatment to better illustrate the camera functionality and his own working view, which I found really helpful.  He also is very specific about the human resources he consulted, the equipment he has chosen to use (and why), and the expenses associated with doing what he has done.  I share it here for your consideration.  The more we can share our victories--as well as our challenges--with each other, the easier it will be for us all to survive (and even thrive) in our teaching through the pandemic.

September 21, 2020 in Joan Heminway, Teaching, Technology | Permalink | Comments (0)

LSU Law is Hiring!

Thanks to friend of the BLPB Christina Sautter for sending along the following hiring announcement:

LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a tenure-track faculty member in commercial law, including, but not limited to, bankruptcy. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching.  

We additionally seek to hire a full-time faculty member with security of position to direct the Immigration Law Clinic as part of LSU Law’s Experiential Education Program. The Immigration Law Clinic is a fully in-house, one-semester, 5 credit clinic in which students represent non-citizens in their defensive proceedings before the Executive Office of Immigration Review (EOIR) and affirmative applications with U.S. Citizenship and Immigration Services (USCIS) Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, substantial experience in Immigration practice and be admitted and in good standing in a U.S. jurisdiction. Prior clinical teaching experience and fluency in Spanish is preferred. We may consider applications from persons who specialize in other areas as additional needs arise. 

We also seek to hire a full-time Assistant Professor of Professional Practice to teach legal analysis and writing. A successful candidate will teach the fundamentals of legal reasoning and writing by way of predictive and objective memoranda in the fall semester and advance those skills by teaching persuasive writing of an appellate brief and appellate oral advocacy in the spring semester. The legal writing faculty collaboratively develop the course materials that are used across the 1L curriculum. Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, and should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing. 

The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.         

Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:  

Christina M. Sautter 
Chair, Faculty Appointments and Adjuncts Committee 
c/o Pam Hancock (or by email to phancock@lsu.edu
Paul M. Hebert Law Center 
Louisiana State University 
1 East Campus Drive 
Baton Rouge, Louisiana 70803-0106

September 21, 2020 in Joan Heminway, Jobs, Law School | Permalink | Comments (0)

Monday, September 14, 2020

Monday Haiku - Lawyers as Leaders

Lawyers as leaders.
Reputation is sacred.
So, guard it closely.

In my new role as Interim Director of UT Law's Institute for Professional Leadership (IPL, for short), I have made a commitment to sit in on the classes in the Institute's curriculum.  One of them, Lawyers as Leaders, is the flagship course--the course that catalyzed the establishment of the IPL.  This semester, it is being hosted on Zoom.

In that course this afternoon, the students wrestled with attorney misconduct--and how to punish it.  During the first hour of the two-hour session, they spent time in breakout rooms discussing three cases that involved different lapses of professional responsibility rules (and, in some cases, criminal law rules).  They were asked to report out/comment on several things about those cases, including the propriety and relative severity of the penalties imposed on the respective transgressor attorneys.  During the second hour of class, the students had the opportunity to listen to one of the three offenders tell his story and share what he learned about leadership through his misconduct.  They also were invited to ask him questions.

The story that the students heard was the one involved in this case.  But they heard about the facts in a way that the Tennessee Supreme Court could not possibly convey them.  And they heard about the personal family tragedy that intersected with the case. 

The class was a very moving experience for me--even though I have heard the story told before.  I can only hope that the learning done by the students was as powerful as the teaching.  The haiku that introduces this post only covers the top line; there is so much more richness there that can only be appreciated by hearing the story in person.  I found myself wishing that I had been afforded the opportunity to learn about professional responsibility and leadership in a similarly compelling way during my law school career.  I am grateful for the opportunity to lead this program.

September 14, 2020 in Ethics, Joan Heminway, Lawyering | Permalink | Comments (2)

Monday, September 7, 2020

Teaching Through the Pandemic - Part VI: Labor Day

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I have written here in the past about laboring on Labor Day.  Most recently.  I wrote about the relationship between work and mindfulness in this space last year.  But it seems I also have picked up this theme here (in 2018) and here (at the end of my Labor Day post in 2017).  Being the routine "Monday blogger" for the BLPB does give me the opportunity to focus on our Monday holidays!

This year, however, Labor Day--like so many other days in 2020--is markedly different in one aspect: I am required to teach today.  When I logged in to the campus app on my phone this morning to do my routine daily health screening, I was greeted by this (in clicking through from the main event schedule page):

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This is the first day in my 20 years of teaching, and maybe in my 35 years of post-law school work, that I have been required to work on Labor Day.  My daughter, a Starbucks night shift manager, is required to work every year on Labor Day.  But this is new to me . . . .

Of course, the ongoing pandemic is the reason for this change.  By compacting the semester, we are endeavoring to keep folks who are attending class in person here on campus in a more constrained environment until the holidays (at which time we will release everyone to their families and friends until the new semester begins in January).  Our campus website offers the following by way of a top-level explanation of the adjustments to the ordinary, customary academic calendar:

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Thank you, COVID-19, for yet one more "first" in this year of many unprecedented things (including the 2019 novel coronavirus itself).

I have tried to make the best of teaching on the holiday, especially given the great weather we are having here in East Tennessee right now.  I taught both of my classes today in the outfit I would have worn if I had been at home (as shown above at the top of the post and below, in both cases in my Corporate Finance class this morning--photo credits to Kaleb Byars and Landon Foody and mask design and sewing credit to my sister, Susan) and encouraged my in-person Business Associations students (almost half of my hybrid class) to come to school in the clothes they would typically wear to a Labor Day BBQ.  I also brought in a special treat for my Corporate Finance students (what could be better at 8:30 am than equity instruments and donuts?) and sent my online Business Associations students into breakout rooms to connect over one of our assigned cases with a smaller group of their classmates while the in-person students wrestled with a case of their own.  There was sparse but constructive attendance at Zoom office hours after class.  In the end, it all has worked out fine.  Not a bad day.

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Wishing a happy Labor Day 2020 to all.  Whether you are working today (at home or at a workplace outside the home) or taking the day off, stay safe and well.  Personally, I look forward to Labor Day hamburgers tonight!

September 7, 2020 in Business Associations, Corporate Finance, Joan Heminway, Teaching | Permalink | Comments (5)

Monday, August 31, 2020

AALS Section on Transactional Law and Skills: Call for Papers – EXTENDED DEADLINE

Call for Papers – EXTENDED DEADLINE

AALS Section on Transactional Law and Skills

The New Public Interest in Private Markets: Transactional Innovation for Promoting Inclusion

January 5-9, 2021, AALS Annual Meeting


The AALS Section on Transactional Law and Skills is pleased to announce a program titled The New Public Interest in Private Markets: Transactional Innovation for Promoting Inclusion during the 2021 AALS Annual Meeting, which will be held virtually. This session will explore how recent developments in corporate and transactional practice address issues of bias in corporate governance and the workplace, with examples ranging from Weinstein representations & warranties in M&A agreements to California’s Women on Boards statute to inclusion riders in the entertainment industry. These developments raise immediate questions of whether public policy goals of achieving greater inclusivity are being met, and they also shed light on perennial debates about the role public law and private ordering play in spurring social innovation.

In addition to paper presentations, the program will feature a panel focusing on how to incorporate concepts, issues, and discussions of equity and inclusivity across the transactional curriculum, including in clinics and other experiential courses, as well as in doctrinal courses.

FORMAT: Scholars whose papers are selected will provide a presentation of their paper, followed by commentary and audience Q&A.

SUBMISSION PROCEDURE: Scholars who are interested in participating in the program should send a draft or summary of at least three pages to Professor Matt Jennejohn at jennejohnm@law.byu.edu on or before Friday, September 25, 2020. The subject line of the email should read: “Submission—AALS Transactional Law and Skills Section Program.”

Scholars whose papers are selected for the program will need to submit a draft by December 16, 2020.

Pursuant to AALS rules, faculty at fee-paid non-member law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and non-law school faculty are not eligible to submit. Please note that all presenters at the program are responsible for paying their own annual meeting registration fees and travel expenses.

August 31, 2020 in Call for Papers, Conferences, Joan Heminway | Permalink | Comments (0)

Monday, August 24, 2020

Hiring Announcement: Entrepreneurship & Applied Legal Technology - Chicago-Kent Law

ILLINOIS TECH CHICAGO-KENT COLLEGE OF LAW

HIRING ANNOUNCEMENT -- GALVIN CHAIR

AUGUST 17, 2020

Chicago-Kent College of Law of the Illinois Institute of Technology is excited to announce its search for the inaugural Michael Paul Galvin Chair in Entrepreneurship & Applied Legal Technology.  We seek a tenured scholar (at any rank) researching and teaching in the fields of (i) intellectual property (with a focus on innovation and/or the patent system), (ii) business law (with a focus on issues related to technology, start-ups, entrepreneurship, etc.), (iii) the legal regulation of emerging technologies, or (iv) applied legal technology.  In addition to residing in the law school and teaching law school classes, the Galvin Chair will be affiliated with Illinois Tech’s Ed Kaplan Family Institute for Innovation and Tech Entrepreneurship.  The Kaplan Institute teaches innovative and entrepreneurial students from across Illinois Tech how to convert their creative ideas into significant and viable businesses, services, and new solutions.  The Galvin Chair is expected to engage in interdisciplinary research in furtherance of the Kaplan Institute’s mission and help facilitate law student involvement in the Kaplan Institute.

Required qualifications for the Galvin Chair include:  (1) a JD or PhD with experience teaching law classes; (2) a record of scholarship, including in one or more of the fields identified above, appropriate for appointment as a tenured professor; and (3) experience and/or interest in interdisciplinary research and teaching in furtherance of the Kaplan Institute’s mission.  Preferably, the successful Galvin Chair candidate will have administrative experience and experience/interest in integrating computational thinking into the law school curriculum.

Chicago-Kent is an equal opportunity employer. Since our founding as a law school serving Chicago’s immigrant and working-class communities, we have been committed to increasing the diversity of our faculty and fostering the inclusion of underrepresented groups in the legal profession. We accepted women and students of color from our inception, graduating our first African-American woman in 1894. Today, we continue our dedication to providing opportunities for all, regardless of age, citizenship status, class, color, disability, ethnicity, gender identity, national origin, race, religion, sex, or sexual orientation.

The Galvin Chair is named for Michael P. Galvin, a 1978 graduate of Chicago-Kent, chairman of the Illinois Tech Board of Trustees, and president of venture capital firm Galvin Enterprises, Inc.  The Chair is endowed through the generous donation of Galvin and his wife Elizabeth as part of a 2019 landmark $150 million combined gift from prominent Illinois Tech leaders to help the university drive Chicago’s continued tech rise.  

We welcome expressions of interest by qualified candidates, as well as nominations.  Please send them, preferably with a current CV, to Hiring Committee Chair Greg Reilly at greilly1@kentlaw.iit.edu.  

*          *          *  

Thanks to Greg Reilly for passing this on to us!

August 24, 2020 in Joan Heminway, Jobs | Permalink | Comments (0)