Business Law Prof Blog

We've moved!

Just posting again to remind everyone that Business Law Prof Blog can now be found at businesslawprofessors.com, which, among other things, supports email subscriptions!  We've got the furniture set up and the welcome mat in place - come find us!

Mississippi College Law - Faculty Openings (Property+)

Mississippi College School of Law invites applications from entry-level candidates for multiple tenure-track faculty positions expected to begin in July 2025. Our search will focus primarily on candidates with an interest in teaching one or more of the following subject areas: Real Property, Intellectual Property, Sports/Entertainment Law, and Cyber Law/Law & Technology.

We seek candidates with a distinguished academic background (having earned a J.D. and/or Ph.D.), a commitment to excellence in teaching, and a demonstrated commitment to scholarly research and publication. We particularly encourage applications from candidates who will enrich the diversity of our faculty. We will consider candidates listed in the AALS-distributed FAR, as well as those who apply directly.

Applications should include a cover letter, curriculum vitae, a scholarly research agenda, the names and contact information of three references, and teaching evaluations (if available). Applications should submitted using the following link: https://www.mc.edu/offices/human-resources/employment?rID[32]=389.

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.

Yale Law Clinical Fellowships

I just heard about this a few days ago, but I do not think anyone has posted on it yet.  Sadly, it looks like the formal application deadline has passed.  But they may still be accepting applications.  Those considering applying may want to inquire . . . .

*          *          *

YALE LAW SCHOOL CLINICAL FELLOWSHIPS

in the Veterans Legal Services Clinic   
and Housing and Community & Economic Development Clinics

Yale Law School seeks applicants for two clinical fellowships in the Jerome N. Frank Legal Services Organization, within Yale Law School's clinical program. These Fellowships are two-year positions with a third-year option, beginning on or about July 1, 2023, and are designed for lawyers with at least three years of practice who are considering a career in law school teaching. Each fellow will work with a different clinic. Responsibilities include representing clients, supervising students, assisting in teaching classes, and pursuing a scholarship agenda. Fellows also have an option to co-teach a section of a six-week fall program for first-year students, Introduction to Legal Analysis and Writing, for additional compensation. Candidates must be prepared to apply for admission to the Connecticut bar (candidates may qualify for admission without examination). All work will be conducted with the support of the clinical faculty and will focus on providing legal assistance to low-income and civil rights clients and organizations. 

The Jerome N. Frank Legal Services Organization is committed to building a culturally diverse and pluralistic faculty and staff to teach and work in a multicultural environment. Candidates must be able to work both independently and as part of a team, and must possess strong written and oral communication skills. Experience in creative and community-driven advocacy is a strong plus. Annual salary is $75,000-80,000. In addition, Fellows will receive health benefits and access to university facilities. 

Email a resume, cover letter, writing sample, and names, addresses and telephone numbers of three references to Osikhena Awudu, Program Manager, The Jerome N. Frank Legal Services Organization, [email protected].  Please indicate the clinic or clinics to which you are applying. Applications will be accepted until March 15, 2023 but will be reviewed on a rolling basis (early applications encouraged).

More details about each fellowship follow below.

Veterans Legal Services Clinic (VLSC)

VLSC is a semester-long, in-house clinic whose students represent veterans and their organizations in VA benefits, record correction, and civil rights litigation in administrative, state, and federal courts, and in state and federal policy advocacy.

Illustrative cases include representation of individual veterans seeking disability compensation benefits for injuries incurred during military service, in initial applications, administrative appeals, and judicial review in federal court; former service members in applications to upgrade a less-than-honorable discharge before Defense Department boards and on judicial review in federal court; plaintiffs in federal civil rights cases, such as a woman raped while a cadet at the U.S. Military Academy at West Point and Black veterans seeking reparations for historic discrimination in VA benefits programs; three nation-wide classes of Iraq and Afghanistan Era veterans who received less-than-fully-honorable discharges, despite having PTSD or related conditions attributable to their military service; a nation-wide class of U.S. Air Force veterans exposed to radiation after cleaning up two hydrogen bombs accidentally dropped on Spain in 1966, in the first appeals class action certified in the history of the U.S. Court of Appeals for Veterans Claims; and local and national veterans' organizations in campaigns to address gender discrimination in congressional nominations to the military service academies; curb retaliation against servicemembers who report sexual harassment or assault; and make veterans with bad paper eligible for state veterans' benefits.

The principal supervisor for the position will be Professor Michael Wishnie.

Housing and Community & Economic Development Clinics

The Community & Economic Development (CED) is a semester-long, in-house clinic that provides transactional legal services to clients seeking to promote economic opportunity and mobility. CED's clients include affordable housing developers, community development financial institutions, farms and farmer's markets, fair housing advocates, and neighborhood associations. CED's legal services help our clients to expand access to financial services, bring arts institutions and grocery stores to chronically under-resourced communities, break down barriers to affordable housing development in high-opportunity communities, promote access to healthy foods, and facilitate entrepreneurship among low-income people.

The Housing Clinic is a semester-long, in-house clinic that represents tenants facing evictions and substandard housing conditions; homeowners facing foreclosures and seeking affirmative relief for illegal behavior by mortgage lenders and servicers; and individuals and advocates in affirmative fair housing litigation.

On behalf of our clients, our students represent clients in federal and state courts; negotiate and draft contracts; provide advice on the tax consequences of deal structures and entity choices; structure and carry out real estate transactions; represent borrowers and lenders in financings; engage in legislative and regulatory advocacy; form for-profit and not-for-profit entities; and resolve land use and environmental issues. In addition to representing clients, students in their first semester of the clinic take a seminar which covers federal, state and local policies affecting urban and suburban places; substantive law in tax, real estate development, and corporate governance; and transactional and regulatory lawyering skills, such as negotiation and drafting contracts.

The principal supervisor for the position will be Professor Anika Singh Lemar.

Yale University considers applicants for employment without regard to, and does not discriminate on the basis of, an individual's sex, race, color, religion, age, disability, status as a veteran, or national or ethnic origin; nor does Yale discriminate on the basis of sexual orientation or gender identity or expression. Title IX of the Education Amendments of 1972 protects people from sex discrimination in educational programs and activities at institutions that receive federal financial assistance. Questions regarding Title IX may be referred to the University's Title IX Coordinator, at [email protected], or to the U.S. Department of Education, Office for Civil Rights, 8th Floor, Five Post Office Square, Boston MA 02109-3921. Telephone: 617.289.0111, Fax: 617.289.0150, TDD: 800.877.8339, or Email: [email protected].

ABA Journal of Affordable Housing & Community Development Law: Call for Papers

Expressions of interest due November 19, 2021
Drafts due December 22, 2021

Journal of Affordable Housing & Community Development Law

GUIDELINES FOR AUTHORS

The Journal of Affordable Housing & Community Development Law is the official quarterly publication of the Forum on Affordable Housing and Community Development Law of the American Bar Association. The Journal is the nation's only law journal dedicated to affordable housing, fair housing and community development law. The Journal educates readers and provides a forum for discussion and resolution of problems in these fields by publishing articles from distinguished law professors, policy advocates and practitioners. This issue, which will hit mailboxes in late April of 2022, will have a theme: preservation of affordable housing, expiring use restrictions, and "Year 15" issues. Your submission does not have to address the theme but we will be looking out for pieces that do.

Article/Essay Length. The Journal welcomes essays (typically no longer than 6,000 words) or articles (typically 5,000 - 10,000 words). Generally, articles are more thoroughly researched and footnoted than essays.

Style. The writing should be appropriate for a readership that consists primarily of lawyers. Authors should avoid excess verbiage, long quotations and jargon. Authors should use gender-neutral language.

Footnotes. All references must be completely and accurately cited, using the citation style of the most recent edition of The Bluebook: A Uniform System of Citation.

Author Biography. Please include a brief description of your current professional affiliation.

Manuscript Preparation. Use footnotes rather than embedded citations; number pages; italicize rather than underline; use Word, WordPerfect, or an IBM-compatible program; and submit the manuscripts as e-mail attachments.

Prior Publication. Simultaneous submission of manuscripts to other publications is discouraged and must be brought to the attention of the editor of the Journal. Unless otherwise clearly noted, all manuscripts are expected to be original.

Copyright. The American Bar Association retains the copyright to all material published in Journal of Affordable Housing & Community Development Law. Authors are asked to sign a copyright agreement that grants to the ABA the exclusive right of first publication, the nonexclusive right to reprint, and the right to use the work in other ABA media-including electronic, print, and other. Special arrangements, although discouraged, can be made for authors who must retain copyright to their articles.

Send Manuscripts to Anika Singh Lemar, Editor-in-Chief, [email protected].

Fershee Article: Oil & Gas Survey: West Virginia (2020)

Over the years, I have been contributor to the Texas A&M Journal of Property's annual oil and gas law survey. This year's article (available here) took a little longer to post than usual, but given all that's gone on in the past year, that's pretty much unavoidable.  For those who wonder what oil and gas law as to do with business law, well, I humbly submit that access to energy is, in the modern world, the foundation upon which virtually all business is built. 

I don't think that's overstating it, though it may be overstating the importance of this particular piece. Nonetheless, hopefully it will have value for some folks.  The abstract for my Oil & Gas Survey: West Virginia (2020) follows: 

This Article summarizes and discusses important recent developments in West Virginia’s oil and gas law as determined by recent West Virginia Supreme Court of Appeals cases. There were no substantial legislative changes in the covered period.

The discussed cases considered:

(1) whether hydraulic fracturing and horizontal drilling were allowed when an old lease could not have contemplated such methods were not permissible;

(2) proper interpretation of deed language;

(3) whether all oil and gas leases have implied rights of pooling;

(4) whether partial, but regular, tax payments precluded a tax sale; and

(5) whether the West Virginia Code allowed for a cap placed on operating expense deductions and if the cap can be described as both a percentage and dollar figure.

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.

Should Corporate Lawyers and Business Law Professors Be Talking About DAOs?

Did I lose you with the title to this post? Do you have no idea what a DAO is? In its simplest terms, a DAO is a decentralized autonomous organization, whose decisions are made electronically by a written computer code or through the vote of its members. In theory, it eliminates the need for traditional documentation and people for governance. This post won't explain any more about DAOs or the infamous hack of the Slock.it DAO in 2016. I chose this provocative title to inspire you to read an article entitled Legal Education in the Blockchain Revolution.

The authors Mark Fenwick, Wulf A. Kaal, and Erik P. M. Vermeulen discuss how technological innovations, including artificial intelligence and blockchain will change how we teach and practice law related to real property, IP, privacy, contracts, and employment law. If you're a practicing lawyer, you have a duty of competence. You need to know what you don't know so that you avoid advising on areas outside of your level of expertise. It may be exciting to advise a company on tax, IP, securities law or other legal issues related to cryptocurrency or blockchain, but you could subject yourself to discipline for doing so without the requisite background. If you teach law, you will have students clamoring for information on innovative technology and how the law applies. Cornell University now offers 28 courses on blockchain, and a professor at NYU's Stern School of Business has 235 people in his class. Other schools are scrambling to find professors qualified to teach on the subject. 

To understand the hype, read the article on the future of legal education. The abstract is below:

The legal profession is one of the most disrupted sectors of the consulting industry today. The rise of Legal Tech, artificial intelligence, big data, machine learning, and, most importantly, blockchain technology is changing the practice of law. The sharing economy and platform companies challenge many of the traditional assumptions, doctrines, and concepts of law and governance, requiring litigators, judges, and regulators to adapt. Lawyers need to be equipped with the necessary skillsets to operate effectively in the new world of disruptive innovation in law. A more creative and innovative approach to educating lawyers for the 21st century is needed.

For more on how blockchain is changing business and corporate governance, come by my talk at the University of Tennessee on September 14th where you will also hear from my co-bloggers. In case you have no interest in my topic, it's worth the drive/flight to hear from the others. The descriptions of the sessions are below:

Session 1: Breach of Fiduciary Duty and the Defense of Reliance on Experts

Many corporate statutes expressly provide that directors in discharging their duties may rely in good faith upon information, opinions, reports, or statements from officers, board committees, employees, or other experts (such as accountants or lawyers). Such statutes often come into play when directors have been charged with breaching their procedural duty of care by making an inadequately informed decision, but they can be applicable in other contexts as well. In effect, the statutes provide a defense to directors charged with breach of fiduciary duty when their allegedly uninformed or wrongful decisions were based on credible information provided by others with appropriate expertise. Professor Douglas Moll will examine these “reliance on experts” statutes and explore a number of questions associated with them.

Session 2: Fact or Fiction: Flawed Approaches to Evaluating Market Behavior in Securities Litigation

Private fraud actions brought under Section 10(b) of the Securities Exchange Act require courts to make a variety of determinations regarding market functioning and the economic effects of the alleged misconduct. Over the years, courts have developed a variety of doctrines to guide how these inquiries are to be conducted. For example, courts look to a series of specific, pre-defined factors to determine whether a market is “efficient” and thus responsive to new information. Courts also rely on a variety of doctrines to determine whether and for how long publicly-available information has exerted an influence on security prices. Courts’ judgments on these matters dictate whether cases will proceed to summary judgment and trial, whether classes will be certified and the scope of such classes, and the damages that investors are entitled to collect. Professor Ann M. Lipton will discuss how these doctrines operate in such an artificial manner that they no longer shed light on the underlying factual inquiry, namely, the actual effect of the alleged fraud on investors.

Session 3: Lawyering for Social Enterprise

Professor Joan Heminway will focus on salient components of professional responsibility operative in delivering advisory legal services to social enterprises. Social enterprises—businesses that exist to generate financial and social or environmental benefits—have received significant positive public attention in recent years. However, social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Professor Heminway will discuss how these legal uncertainties have the capacity to generate transaction costs around entity formation and management decision making and the pertinent professional responsibilities implicated in an attorney’s representation of such social enterprises.

Session 4: Beyond Bitcoin: Leveraging Blockchain for Corporate Governance, Corporate Social Responsibility, and Enterprise Risk Management

Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, Professor Marcia Narine Weldon will discuss how the technology also has the potential to transform the way companies look at governance and enterprise risk management. Companies and stock exchanges are using blockchain for shareholder communications, managing supply chains, internal audit, and cybersecurity. Professor Weldon will focus on eliminating barriers to transparency in the human rights arena. Professor Weldon’s discussion will provide an overview of blockchain technology and how state and nonstate actors use the technology outside of the realm of cryptocurrency.

Session 5: Crafting State Corporate Law for Research and Review

Professor Benjamin Edwards will discuss how states can implement changes in state corporate law with an eye toward putting in place provisions and measures to make it easier for policymakers to retrospectively review changes to state law to discern whether legislation accomplished its stated goals. State legislatures often enact and amend their business corporation laws without considering how to review and evaluate their effectiveness and impact. This inattention means that state legislatures quickly lose sight of whether the changes actually generate the benefits desired at the time off passage. It also means that state legislatures may not observe stock price reactions or other market reactions to legislation. Our federal system allows states to serve as the laboratories of democracy. The controversy over fee-shifting bylaws and corporate charter provisions offers an opportunity for state legislatures to intelligently design changes in corporate law to achieve multiple state and regulatory objectives. Professor Edwards will discuss how well-crafted legislation would: (i) allow states to compete effectively in the market for corporate charters; and (ii) generate useful information for evaluating whether particular bylaws or charter provisions enhance shareholder wealth.

Session 6: An Overt Disclosure Requirement for Eliminating the Duty of Loyalty

When Delaware law allowed parties to eliminate the duty of loyalty for LLCs, more than a few people were appalled. Concerns about eliminating the duty of loyalty are not surprising given traditional business law fiduciary duty doctrine. However, as business agreements evolved, and became more sophisticated, freedom of contract has become more common, and attractive. How to reconcile this tradition with the emerging trend? Professor Joshua Fershée will discuss why we need to bring a partnership principle to LLCs to help. In partnerships, the default rule is that changes to the partnership agreement or acts outside the ordinary course of business require a unanimous vote. See UPA § 18(h) & RUPA § 401(j). As such, the duty of loyalty should have the same requirement, and perhaps that even the rule should be mandatory, not just default. The duty of loyalty norm is sufficiently ingrained that more active notice (and more explicit consent) is necessary, and eliminating the duty of loyalty is sufficiently unique that it warrants unique treatment if it is to be eliminated.

Session 7: Does Corporate Personhood Matter? A Review of We the Corporations

Professor Stefan Padfield will discuss a book written by UCLA Law Professor Adam Winkler, “We the Corporations: How American Businesses Won Their Civil Rights.” The highly-praised book “reveals the secret history of one of America’s most successful yet least-known ‘civil rights movements’ – the centuries-long struggle for equal rights for corporations.” However, the book is not without its controversial assertions, particularly when it comes to its characterizations of some of the key components of corporate personhood and corporate personality theory. This discussion will unpack some of these assertions, hopefully ensuring that advocates who rely on the book will be informed as to alternative approaches to key issues.

 

Overnighters - Purpose, Priorities, and Process

Over the break, I watched the documentary Overnighters on Netflix. 

In short, the documentary chronicles the story of a pastor who opens the church to migrant workers in North Dakota during the energy boom in that state. The pastor faces pushback from his congregation, neighbors, and city officials who do not appreciate having these men - some with criminal records - housed so close. 

In my opinion, the pastor is right, and the congregants are wrong, about the purpose of a church. The church should be in a community to serve, especially its needy neighbors. That said, the logistics of how to serve may be up for debate. Also, it is at least arguable that by serving the migrant workers the church strayed from serving its congregation. It would have been helpful if the church had a clear statement on its purpose and priorities. Many social enterprises have extremely vague purpose statements, which I do not think are very helpful. Benefit corporations are often required by statue to "benefit society and the environment." A purpose statement like that would not have helped the church in Overnighters much at all. A statement that showed that those in need would be prioritized over the comfort of the congregants (or vice-versa) would have been more helpful.  

The more valid complaint from the congregation, is the claim that an appropriate process for initiating the housing program was not followed. Sometimes even if stakeholders agree on the ultimate action taken by the organization, the stakeholders will still be upset if they are not included, or listened to, in the decision making process. I think this complaint is likely also found in businesses. Assuring the proper processes are set forth and followed can be quite important for businesses, especially in closely-held and family run businesses, where the stakeholders are deeply invested. 

The documentary is depressing and does not paint a pretty picture of human nature, but I do think things would have worked out a bit better for most of those involved if purpose, priorities, and process were paid more attention.  Of course, that is much easier written than done. 

Professor Leahy on "Loftium Unwittingly Forms General Partnerships with Homebuyers"

Friend of the blog and South Texas College of Law (Houston) Professor Joe Leahy sent over the following post he authored. It is cross-posted at UberLaw.Net and Medium. Embarrassingly, I had not heard about Loftium before reading this post, though at least I know of and have used Airbnb. Joe has some interesting thoughts, and I am happy to include his post on this blog. 

----------

Yesterday, the New York Times trumpeted a new internet company, Loftium, and its interesting, new-economy business model (which, for the time being, operates only in Seattle):

Loftium will provide prospective homebuyers with up to $50,000 for a down payment, as long as they are willing to continuously list an extra bedroom on Airbnb for one to three years and share most of the income with Loftium over that time.

At first glance, the arrangement between Loftium and participating homebuyers might sound like a loan.  (Indeed, the Times even describes it as such in an infographic.)  But upon a closer look, the arrangement that Loftium contemplates with homebuyers clearly is not a loan.  First of all, Loftium says it is not a loan; rather, according to Loftium, the down payment assistance it provides to homebuyers is “a part of a services agreement” lasting 12-36 months.  Second, and more important, the arrangement between Loftium and homebuyers has none of the characteristics of a traditional (term) loan.  There is no “principal” amount that the homebuyer is required to repay in a set period of time, and Loftium does not charge the homeowner any “interest.”  In fact, the homebuyer is not required to make anypayments to Loftium in return for the company’s cash (unless the homeowner breaches the parties’ agreement and stops renting on Airbnb before the term expires).

All the homebuyer must do in exchange for Loftium’s money is (1) list her spare room on Airbnb continuously through the term of her agreement with Loftium, (2) be a decent host (i.e., “not be[] rude to guests”) and (3) split her Airbnb  rental revenue with Loftium (with two-thirds going to the company.)  If, at the end of the term, Loftium has not been repaid its initial investment, the homeowner is not required to repay Loftium’s initial contribution. Hence, if renting out the homeowner’s spare room is not profitable during the term of the parties’ agreement, “Loftium takes full responsibility for that loss.”

Of course, Loftium expects that the total income from renting out a homeowner’s spare room will greatly exceed the amount that it originally provided to the homebuyer, so that both will profit.  If Loftium makes more in rental income than it pays towards the homeowner’s down payment, Loftium will make a profit.

Further, by all appearances, there is no cap on Loftium’s potential profit is its business arrangement with homebuyers.  In fact, Loftium makes clear that it wants to maximize the income that it splits with homebuyers:  Loftium promises that it will work with them “to increase monthly bookings as much as possible, so both sides can benefit from the additional income.”  To that end, Loftium provides homebuyers with some start-up supplies for their spare bedroom (and a keyless entry lock), access to advice and know-how regarding how to rent an Airbnb room, and online tools to help maximize their rental income.

So, if the business arrangement between Loftium and homeowners is not a loan, what is it?  It is almost certainly a general partnership for a term (i.e., a “joint venture”).

[Post continues after the page break]

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Summer Reading: Jayber Crow by Wendell Berry

I highly recommend Jayber Crow by Wendell Berry. 

Set in rural Kentucky, Jayber Crow is a story about small town life, community, love/hate, sustainability, and industrialization. The main character, Jonah "Jayber" Crow loses both his parents and his Aunt and Uncle by the age of ten. He spends the next few years in an orphanage before obtaining a scholarship to a local college as a "pre-ministerial" student. Doubting his calling to the ministry, Jayber drops out and returns to his hometown. He serves as the town's only barber, and he also picks up jobs as the local grave digger and church janitor. Jayber narrates, in vivid detail, the exodus from the small town by the younger generation and the invasion of large-scale, profit-focused, corporate farming.   

The author, Wendell Berry, warns that "persons attempting to explain, interpret, explicate, analyze, deconstruct, or otherwise 'understand' [this book] will be exiled to a desert island in the company only of other explainers" so I will simply end with a few of my favorite quotes below. I think one of the reasons I so liked this book is because it reminded me of my family's property and of my maternal grandfather, who lived at a pace unknown to most of us and who worked the land with his hands and simple tools. 

"You have been given questions to which you cannot be given answers. You will have to live them out--perhaps a little at a time." (54)

"The university thought of itself as a place of freedom for thought and study and experimentation, and maybe it was, in a way. But it was an island too, a floating or a flying island. It was preparing people from the world of the past for the world of the future, and what was missing was the world of the present, where every body was living its small, short, surprising, miserable, wonderful, blessed, damaged, only life." (71) 

"Instead of sitting out and talking from porch to porch on the summer evenings, the people sat inside rooms filled with the flickering blue light of the greater world." (258)

"We were, as we said again, making war in order to make peace We were destroying little towns in order to save them. We were killing children in order that children might sleep peacefully in their beds without fear." (294)

"On those weekends, the river is disquieted from morning to night by people resting from their work. This resting involves traveling at great speed, first on the roads and then on the river. The people are in an emergency to relax." (331)

"The Economy does not take people's freedom by force, which would be against its principles, for it is very humane. It buys their freedom, pays for it, and then persuades its money back again with shoddy goods and the promise of freedom." (332)

Update: Here is a trailer for a new film on Wendell Berry, Look & See. Powerful, especially if you grew up in a rural place that is now being "developed," or if have seen beautiful landscapes that you love ruined. "Those who had wanted to go home could never get there now...."

My "New" Article on Fracking and Property Law in West Virginia: What's in a Date?

I am happy to say I just received my new article, co-authored with a former student, S. Alex Shay, who is now a Trial Attorney in the Office of the United States Trustee, Department of Justice. The article discusses property law challenges that can impeded business development and negatively impact landowners and mineral owners in shale regions, with a focus on the West Virginia portion of the Marcellus Shale. The article is Horizontal Drilling Vertical Problems: Property Law Challenges from the Marcellus Shale Boom, 49 John Marshall Law Review 413-447 (2015). 

If you note the 2015 publication date, you can see the article has been a long time coming.  The conference it is linked to took place in September 2015, and it has taken quite a while to get to print. On the plus side, I was able to do updates to some of the issues, and add new cases (and resolutions to cases) during the process.  I just received my hard copies yesterday -- January 9, 2017 -- and I received a notice it was on Westlaw as of yesterday, too.

I always find it odd when law reviews use a specific year for an issue, as opposed to the actual publication year.  I can understand how a January publication might have a 2016 date. That would have made sense, but dating the issue back to 2015, when I discuss cases decided in 2016 seems a little weird.  I know there is a certain level of continuity that the dates can provide, but still, this seems too long. 

When I was editor in chief of the Tulane Law Review, one of the things we prided ourselves on was not handing off any issue from our volume to the next board. A few years prior to our arrival, a committed group of Law Review folks caught up everything -- publishing, if memory serves (and legend was correctly passed on), two and a half volumes. And Tulane Law Review publishes six issues a year. They, apparently, did not sleep. 

I am happy to have the article our, and the editors did good work.  It just would have been nice to have it appear a little more timely and relevant than I think this "new" article does.  For anyone who is interested, here's the abstract (article available here): 

This article focuses on key property challenges appearing as part of the West Virginia Marcellus Shale play. The paper opens with an introduction to the Marcellus Shale region that is the focus of our analysis. The paper explains the horizontal drilling and hydraulic fracturing process that is an essential part of shale oil and gas development. To help readers understand the property challenges related to shale development, we include an introduction to the concept of severed estates, which can create separate ownership of the surface estate and the mineral estate. The article then focuses on two keys issues. First, the article discusses whether horizontal drilling and hydraulic fracturing constitute a “reasonably necessary” use of surface land to develop mineral rights, and concludes they are, at least in most instances. Second, the article discusses difficulties in analyzing deed language related to minerals rights and royalty interests, which has created challenges for mineral owners, leasing companies, and oil and gas developers. Please note that although the publication date is 2015, the article was not in print until January 2017 and discusses cases from 2016. 

Ultimately, the article concludes, legislators and regulators may choose to add surface owner protections and impose other measures to lessen the burden on impacted regions to ease the conflict between surface owners and mineral developers. Such efforts may, at times, be necessary to ensure continued economic development in shale regions. Communities, landowners, interest groups, companies, and governments would be well served to work together to seek balance and compromise in development-heavy regions. Although courts are well-equipped to handle individual cases, large-scale policy is better developed at the community level (state and local) than through the adversarial system.

"Business Law" Earn Spot as 2016 Law Job Hiring "Trend"

Increasing business demands are prompting companies to expand into new products and markets. Businesses also are engaging in mergers, acquisitions and joint ventures; issuing  securities; and performing other transactions associated with business growth, which results in larger corporate teams. Many companies have a need for additional in-house legal professionals who are readily available to help manage mounting financial and industry-related regulations. Moreover, corporate legal departments often prefer to handle more routine legal work in-house and retain the services of outside counsel for specialized legal work.

Real estate, IP, health care and compliance were also mentioned along with the noted strong growth in litigation.  The full report/study is available here:  Download Legal_2016_job_salary_guide.

 

-Anne Tucker