Monday, January 3, 2022
Yes, like many, I was saddened by the loss of TV personality Betty White on New Year's Eve at the age of 99--just a few weeks shy of her 100th birthday. I have been fascinated by the many tributes and, indeed, tuned in for the SNL reprise of her Mother's Day host night (from eleven years ago!) on Saturday night. Why are so many of us intrigued by this near centenarian whom we have never met in person? I have mulled this as I complete the calculation of my fall semester grades, ready myself for presentations, commentary, and attendance at the 2022 AALS conference (which starts later this week), and prepare to start teaching for the spring semester.
My colleague and friend Stuart Brotman gets a lot of it right, imv, in this short post. I invite you to read it. Stuart is a lawyer embedded in our School of Journalism and Electronic Media (part of the College of Communication and Information) and on the Advisory Board for our Institute for Professional Leadership. Here's what I have culled from Stuart's piece and other articles I have read (and from just watching Betty "do her thing") over the past few days.
- She showed up.
- She brought her "A Game" to what she did.
- She embraced challenge.
- She was candid at the risk of showing herself to be less than perfect--even unattractive.
- She brought a sense of humor to her craft (including a sense of humor about herself).
- She loved people and life--or at least always made it look that way.
I am sure there is more. I will keep thinking on it, for fun. But as I assembled this list in my head, I realized it included a number of inspiring thoughts for the new year and the new semester. So, I invite you to honor Betty White's memory by adopting her norms--or at least some of them--as you begin your work in 2022. They are so positive and strong!
🎉 Happy New Year to all. 🎊 I hope 2022 brings you good health and joy.
Monday, December 27, 2021
As the Interim Director of UT Law's Institute for Professional Leadership (IPL), I have the privilege of working with a student fellow. Both last year's fellow (chosen by the founder and Director of the IPL) and this year's fellow (selected by me) have been advanced business law students. I have had the pleasure of getting to know both well, inside and outside the classroom.
Our Hardwick Fellows have a number of roles in the IPL. They often involve collaborative tasks. One of the most fun components is our work co-editing guest posts for the IPL's Leading as Lawyers blog. We read and revise posts authored by students, alumni, faculty, staff, and sometimes others. We endeavor to publish a post about every two or three weeks. Click on the "follow" button on our WordPress home page to receive email notices of new posts.
The IPL's 2021-22 Hardwick Fellow is Stefan Kostas. As we sat down to do some semester-end planning, we somehow came to the idea of co-creating a holiday season post--a dialogue capturing some of our relevant reflections. We conducted the "conversation" by e-mail and then edited it. The end result is a post entitled: "Leadership Musings, Goal-Setting, and the New Year: A Colloquy."
It struck me that our holiday season/year-end post might be of interest to BLPB readers, too. So, feel free to click on the link and give it a read. It exemplifies many of the conversations business law profs--and other law profs--have with students whom they mentor and with whom they collaborate. This kind of give-and-take--part social conversation, part mentoring and career development--is a wonderfully joyful part of our job as instructors in the law school setting. We are, indeed, blessed.
Sending out wishes to all for a very happy, healthy new year. No doubt surprise challenges in legal education will continue to arise in the lingering pandemic environment. But the rich professional and academic relationships our jobs allow us to have will be part of what sustains me in 2022. 🎉
Monday, December 13, 2021
I spent a bunch of the day today reading an excellent draft paper written by one of my 3L students. The paper is about fraud carveouts in no seller indemnity deals backed by representations and warranties insurance. But this post is not about that. It is about a question I asked the student (and myself) in connection with my review of the paper about how to classify or label certain provisions she was describing.
The standard structure of an M&A agreement includes articles clearly labeled as including representations and warranties, covenants, and conditions. However, other articles are not as transparent in advertising their contents. An article entitled "Indemnification" typically does include an express agreement (sometimes mutual agreements) to indemnify that would easily be classified as a covenant. But that article also may include an exclusive remedy provision, restricting recourse for a breach of representation or warranty to the indemnification. An example would be as follows (courtesy of Law Insider):
Sole and Exclusive Remedy. From and after the Closing, the indemnification provisions of this Article XII shall be the sole and exclusive remedy of each Party (including the Seller Indemnified Parties and the Purchaser Indemnified Parties) (i) for any breach of any Party’s representations, warranties, covenants or agreements contained in this Agreement or (ii) otherwise with respect to this Agreement or the transactions contemplated hereby with respect to the Company, other than in the case of (i) and (ii) instances of fraud or intentional misconduct or claims for non-monetary relief with respect to the enforcement of Section 6.02 or 8.03. In furtherance of the foregoing, each Party hereby waives, to the fullest extent permitted under Applicable Law, any and all rights, claims and causes of action it may have against another Party hereunder or under Applicable Law with respect to the claims described in clauses (i) and (ii) above, other than instances of fraud or intentional misconduct or claims for non-monetary relief with respect to the enforcement of Section 6.02 or 8.03.
The first part of this provision is treated as an enforceable agreement between the parties even though it reads somewhat more like an acknowledgement, affirmation, or promise. Indeed, the provision expresses an understanding between the parties. So it also is likely best classified as a covenant. The last part is a waiver.
But what about some of the provisions included in the M&A article entitled "Miscellaneous" (or sometimes "General" or the like)? Let's take an integration clause like this one (also courtesy of Law Insider):
Integration Clause. This Agreement, including all attachments and exhibits hereto, supersede[s] all prior oral or written agreements, if any, between the parties and constitutes the entire agreement between the parties with respect to the work to be performed.
Or an non-reliance provision like this one (again, courtesy of Law Insider):
Non-Reliance. Each Party acknowledges that in agreeing to this Agreement it has not relied on any oral or written representation, warranty or other assurance, except as otherwise set forth in this Agreement, and waives all rights and remedies which might otherwise be available to it in respect thereof, except that nothing in this Agreement will limit or exclude any liability of a Party for fraud.
How might we classify and label those provisions? Neither reads like a covenant--an actionable, enforceable, agreement or promise. Each provides atmosphere or context.
All of this worry about classification and labeling may not be worth much in the end. Apart from accurate descriptions in expository writing, do we really care how these contract provisions are classified and labeled? Certainly, it helps us to have labels that we can attach to performance and compliance descriptors in discussing contract enforcement (e.g., representations and warranties are accurate and complete or breached; covenants are complied with or there is a failure of compliance). But maybe there is not much else in a label . . . . Admittedly, I have not researched the matter or thought through any significant legal ramifications; I am just sharing reactions and impressions based on my review of a student paper. As a result (and as always), your views and ideas are welcomed.
Monday, December 6, 2021
This in from friend-of-the-BLPB Jessica Erickson:
Dear AALS Business Association Section Members,
I hope the end of your semester is going well! I'm writing with programming details for the January 2022 AALS Annual Meeting and to invite you to nominate yourself or others for Executive Committee positions next year.
January 2022 Annual Meeting
1. Registration is still open, and you can register here https://aals.secure-platform.com/a/organizations/main/submissions/details/7094 . As you may know, most law schools have paid school-wide registration fees again this year, which makes registration simpler, but you still have to register to attend any of the sessions.
2. The Business Associations Section main program, "Race and Teaching Business Associations," will be held Friday, January 7th at 12:35 to 1:50 EST. Many thanks to James Park, the section's chair-elect, for organizing this panel!
Description: Business Associations classes taught in most law schools spend little if any time on issues relating to racial discrimination and inequity. But as important social institutions, businesses have long had a significant impact on racial equity. The increasing scrutiny of the lack of diversity on public company boards is one of several fronts where businesses are facing both legal and social pressure to address racial inequity. Students are increasingly interested in understanding how the law governing business organizations reflects or contributes to racial injustice. Many law professors want to do more to cover topics relating to race in their Business Associations course and are seeking guidance on how to do so. This panel will provide a forum where teachers of Business Associations can share ideas for incorporating the subject of racial discrimination and inequity into their classes.
* Invited Speakers
Thomas Joo, UC Davis School of Law
Steven Ramirez, Loyola University Chicago School of Law
Cheryl Wade, St. John's University School of Law
* Presenter from Call for Papers: Harwell Wells, Temple University School of Law, presenting Shareholder Meetings and Freedom Rides: The Story of Peck v. Greyhound
* Moderator: James Park, UCLA School of Law
3. The section's Works-in-Progress Program will be held Thursday, January 6th at 4:45 - 6:00 pm EST. Many thanks to Eric Chaffee for organizing a terrific panel of the following presenters and commentators!
* Paper #1: William J. Moon (University of Maryland Carey School of Law), Anonymous Companies
* Commentators: Frank Gevurtz, Joan Heminway, Eric Chaffee
* Paper #2: Trang (Mae) Nguyen (Temple University Beasley School of Law), Norm Assembly in Global Value Chains
* Commentators: Michael Malloy, Kish Parella, Veronica Root
* Paper #3: Alexander I. Platt (University of Kansas School of Law), Beyond "Market Transparency": Investor Disclosure and Corporate Governance
* Commentators: Afra Afsharipour, Michael Guttentag, and Donna Nagy
* Moderator: Eric Chaffee
Nominations for Next Year's Executive Committee
Finally, following past practice, we will hold an electronic business meeting later this month to determine the membership of next year's executive committee. If you would like to nominate yourself or another member, please email me at email@example.com by December 13, 2020.
We hope to see you (virtually) at the Annual Meeting!
On behalf of the Executive Committee:
Jessica Erickson, University of Richmond School of Law (Chair)
James J. Park, University of California, Los Angeles School of Law (Chair-Elect)
Dana Brakman Reiser, Brooklyn Law School
Eric Chaffee, University of Toledo College of Law
Carliss Chatman, Washington & Lee School of Law
Gina-Gail S. Fletcher, Duke University School of Law
Mira Ganor, University of Texas School of Law
Cathy Hwang, University of Virginia School of Law
Matt Jennejohn, BYU Law School
Michael Malloy, University of the Pacific McGeorge School of Law
James Nelson, University of Houston Law Center
Andrew Verstein, University of California, Los Angeles School of Law
Cheryl Wade, St. John's University School of Law
Manning G. Warren, III, University of Louisville, Louis D. Brandeis School of Law
Monday, November 29, 2021
In my Corporate Finance class this morning, as a capstone experience, I asked my students to read and be prepared to comment on an article I wrote a bit over a decade ago. The article, Federal Interventions in Private Enterprise in the United States: Their Genesis in and Effects on Corporate Finance Instruments and Transactions, 40 Seton Hall L. Rev 1487 (2010), offers information and observations about the U.S. government's engagements as an investor, bankruptcy transformer, and M&A gadfly/matchmaker in responding to the global financial crisis. A discussion of the article typically leads to a nice review of several things we have covered over the course of the semester. I have a number of topics I want to ensure we engage with, but I allow some free rein.
Today, one of our interesting bits of discussion centered around the possibility that the U.S. government became a controlling shareholder for a time due to the nature of its high percentage ownership interest in, for example, AIG. This was not directly addressed in my article. Nevertheless, we set into a discussion of the substance, citing to Sinclair Oil Corp. v. Levien, one of Josh Fershee's favorite cases. We also reflected on possible associated lawyering and professional responsibility issues.
I wondered after the in-class discussion whether anyone of us who had written articles on the government as an investor in private enterprise in the wake of the financial crisis had, in fact, commented on this aspect of the government's majority or other controlling preferred stock investments. A little digging revealed the following passage from a student article:
Delaware corporate law protects minority shareholders from controlling shareholders who use the corporation to advance their own interests at the expense of other shareholders. It does so both by imposing fiduciary duties on the directors and officers of a corporation, including duties of care, loyalty, and good faith, and extending those duties to any shareholder who exercises control over a corporation.
Matthew R. Shahabian, The Government as Shareholder and Political Risk: Procedural Protections in the Bailout, 86 N.Y. L. Rev. 351, 369 (2011) (citing to Sinclair) (footnote omitted). The article engages both Sinclair's substantive fiduciary duty rule and the applicable judicial review standard, citing to the case a total of six times. J.W. Verret also cites to Sinclair for the same principles in his article Treasury Inc.: How the Bailout Reshapes
Corporate Theory and Practice, 27 Yale J. Reg. 283, 335 (2010), and Steven Davidoff Solomon and David Zaring give Sinclair three nods in their article, After the Deal: Fannie, Freddie, and the Financial Crises Aftermath, 95 B.U.L. Rev. 371 (2015). Good to know.
I admit that I was pleased that, after 13-14 weeks of hard work on the part of me and my students, we could have a conversation about this type of practical, applied legal issue. I was still guiding the way a bit, but the students really carried the discussion. And they had useful ideas and observations--ones I know they could not have shared at the beginning of the semester. I applaud them; I am proud of them!
Tuesday, November 23, 2021
Penn State Law Minority Business Development: Special Open Session (November 30, 2021, 4:00 PM - 6:45 PM EST)
This just in from friend-of-the-BLPB Sam Thompson at Penn State Law. Sam hopes we will bring this program to the attention of those "who might be interested in learning more about this very important topic," including law school administrators, faculty, and students. I know I plan to make others aware.
Dear Colleagues: This semester I am teaching a course dealing with issues in Minority Business Development, a subject I took as a student literally 50 years ago in my third year at the University of Pennsylvania Law School. Because of the importance of this topic, Penn State Law has permitted me to make the course open to anyone who is interested in this very important topic, and recordings of all of the sessions of the course are available on the Penn State Law website here.
The course is divided into the following three segments:
Part I, Introduction and in-Depth Analysis of the Minority-White Gap in Business Ownership,
Part II, The Lawyer’s Essential Tools in Representing a Minority-Owned Small Business, and
Part III, The Big Ideas for Addressing the Minority-White Gap in Business Ownership
Part I was covered over five sessions and ended with a discussion with Professor Berdejo of the Loyola Law School in LA about his recently published article in the University of Wisconsin Law Review entitled: Financing Minority Entrepreneurship. Part II of the course focused on the Essential Tools that any lawyer needs in advising owners of a business. Each of these sessions was led by an outstanding practitioner, including a lawyer from the following firms: McGuire Woods; Richards, Layton & Finger; Nelson Mullins; Schiff Hardin; Wachtell Lipton; and Starfield & Smith. For this part, we principally used the Maynard et. al. Business Planning casebook.
This brings me to Part III, The Big Ideas for Addressing the Gap, which will be held in one session on Tuesday, November 30, 2021. This special session will be live over the Internet from 4 PM to 6:45 PM Eastern Time. A recording of this session will also be available on the website for the course. This Special Session is entitled Perspectives on Minority Business Development, and in this session, experts from across the country will engage in a live discussion of Minority Business Development issues. The event, which is divided into three sessions, includes perspectives of lawyers, an economist, a business school dean, tax policy experts, entrepreneurs, and Penn State Law students who are enrolled in the course. Reactions to the presentations in the three sessions will be provided by Dana Peterson, Chief Economist at The Conference Board. While Ms. Peterson was a banker at Citigroup, she was the co-author of a 2020 report by Citigroup entitled: Closing the Racial Inequality Gaps. A flyer for the program is attached, and the event page for the program can be reached here.
. . .
Friday, September 24, 2021
I'm so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here's the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren't the only ethical traps, of course, but there's only so many things you can talk about in a 45-minute slot.
All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.
Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing with an unrepresented person), 7.1 (communications about a lawyer’s services), 8.3 (reporting professional misconduct); and 8.4 (dishonesty, fraud, deceit).
Discussion topics will include:
- Do lawyers have an ethical duty to take care of their wellbeing? Can a person with a substance use disorder or major mental health issue ethically represent their client? When can and should an impaired lawyer withdraw? When should a lawyer report a colleague?
- What ethical obligations arise when serving on a nonprofit board of directors? Can a board member draft organizational documents or advise the organization? What potential conflicts of interest can occur?
- What level of technology competence does an attorney need? What level of competence do attorneys need to advise on technology or emerging legal issues such as SPACs and cryptocurrencies? Is attending a CLE or law school course enough?
- What duties do lawyers have to educate themselves and advise clients on controversial issues such as business and human rights or ESG? Is every business lawyer now an ESG lawyer?
- What ethical rules apply when an in-house lawyer plays both a legal role and a business role in the same matter or organization? When can a lawyer representing a company provide legal advice to an employee?
- With remote investigations, due diligence, hearings, and mediations here to stay, how have professional duties changed in the virtual world? What guidance can we get from ABA Formal Opinion 498 issued in March 2021? How do you protect confidential information and also supervise others remotely?
- What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
- What can and should a lawyer do when dealing with a businessperson on the other side of the deal who is not represented by counsel or who is represented by unsophisticated counsel?
- When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
- What are potential gaps in attorney-client privilege protection when dealing with cross-border issues?
If you need some ethics CLE, please join in me and my co-bloggers, who will be discussing their scholarship. In case Joan Heminway's post from yesterday wasn't enough to entice you...
Professor Anderson’s topic is “Insider Trading in Response to Expressive Trading”, based upon his upcoming article for Transactions. He will also address the need for business lawyers to understand the rise in social-media-driven trading (SMD trading) and options available to issuers and their insiders when their stock is targeted by expressive traders.
Professor Baker’s topic is “Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis.” Professor Baker will provide an overview of the regulation of Texas’ electric power system and the severe outages in February 2021, explaining why Texas is on the forefront of challenges that will grow more prominent as the world transitions to cleaner energy. Next, it explains competing electric power business models and their regulation, including why many had long viewed Texas’ approach as commendable, and why the revealed problems will only grow more pressing. It concludes by suggesting benefits and challenges of these competing approaches and their accompanying regulation.
Professor Heminway’s topic is “Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.” Professor Heminway will discuss how for many small business projects that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended, the time and expense of organizing, qualifying, and maintaining a tax-exempt nonprofit corporation may be daunting (or even prohibitive). Yet there would be advantages to entity formation and federal tax qualification that are not available (or not easily available) to unincorporated business projects. Professor Heminway addresses this conundrum by positing a third option—fiscal sponsorship—and articulating its contextual advantages.
Professor Moll’s topic is “An Empirical Analysis of Shareholder Oppression Disputes.” This panel will discuss how the doctrine of shareholder oppression protects minority shareholders in closely held corporations from the improper exercise of majority control, what factors motivate a court to find oppression liability, and what factors motivate a court to reject an oppression claim. Professor Moll will also examine how “oppression” has evolved from a statutory ground for involuntary dissolution to a statutory ground for a wide variety of relief.
Professor Murray’s topic is “Enforcing Benefit Corporation Reporting.” Professor Murray will begin his discussion by focusing on the increasing number of states that have included express punishments in their benefit corporation statutes for reporting failures. Part I summarizes and compares the statutory provisions adopted by various states regarding benefit reporting enforcement. Part II shares original compliance data for states with enforcement provisions and compares their rates to the states in the previous benefit reporting studies. Finally, Part III discusses the substance of the benefit reports and provides law and governance suggestions for improving social benefit.
All of this and more from the comfort of your own home. Hope to see you on Zoom today and next year in person at the beautiful UT campus.
September 24, 2021 in Colleen Baker, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Ethics, Financial Markets, Haskell Murray, Human Rights, International Business, Joan Heminway, John Anderson, Law Reviews, Law School, Lawyering, Legislation, Litigation, M&A, Management, Marcia Narine Weldon, Nonprofits, Research/Scholarhip, Securities Regulation, Shareholders, Social Enterprise, Teaching, Unincorporated Entities, White Collar Crime | Permalink | Comments (0)
Monday, August 16, 2021
At UT Law, our orientation period for the new academic year began on Friday. I am back in the classroom today teaching a two-session introductory period course on case briefing and legal analysis. Regular classes begin on Wednesday.
The struggle I had in creating my syllabi this year was real. Under current prescriptions and proscriptions, we are teaching in person, with no physical distancing, masked. But masks are not required throughout the building. Moreover, while vaccination is encouraged, it is not required for faculty, staff, or students, and we are prohibited from asking faculty and staff colleagues and students about vaccination status. There have been more student accommodation requests than usual in my large-section course. In general, COVID-19, the political divide, and social (especially racial) unrest--which overlap to create a veritable triple pandemic--are seemingly collectively conspiring against us in so many ways, including in the educational setting. I am feeling the weight of it all.
But undaunted, I move forward in my law teaching! I have addressed some key concerns in my syllabi this semester. I include two sections from my syllabi below that may be of interest. Feel free to dismiss or use these as you will. Most of the substance of the "COVID-19;community heatlh" piece is from language provided to campus faculty by our Provost's office, through our Teaching & Learning Innovation group (part of our Division of Faculty Affairs). The rest comes from CDC (Centers for Disease Control and Prevention) guidance.
COVID-19; community health: The campus administration has advised us that, with the spread of the Delta variant of COVID-19, students, faculty, and staff will be required to wear masks in classrooms, labs, and for indoor academic events required for students such as orientation. This requirement will remain in place until conditions improve and the university communicates new instructions.
The university strongly recommends that all members of the campus community be vaccinated for their own protection, to prevent disruption to the semester, and to prevent the spread of COVID-19. Vaccination information and appointment signups are available at tiny.utk.edu/vaccine. The Student Health Center medical staff is available to students to answer questions or discuss concerns about vaccines, and the center provides vaccines free of charge for anyone 18 years or older who would like one.
If you think you are sick or have been exposed to COVID-19, you should contact the Student Health Center or your preferred health care provider. You can also contact the university’s COVID-19 support team for guidance by filling out the COVID-19 self-isolation form at covidform.utk.edu.
You must not attend class if you have tested positive for COVID-19 and are in the isolation period, if you have COVID-19 symptoms and have not been cleared by a medical provider, or if you are an unvaccinated close contact in the quarantine period.
If you need to miss class for illness, please contact me by telephone at 865-974-3813 or by electronic mail at firstname.lastname@example.org.
Over the course of the semester, you can find more information and updates at utk.edu/coronavirus.
We also are advised that following other simple practices also promotes good health in and outside the classroom. These include:
- maintaining physical distance from others when possible;
- avoiding crowds and poorly ventilated spaces;
- frequent and thorough hand-washing;
- covering coughs and sneezes;
- cleaning and disinfecting high-touch surfaces; and
- monitoring your personal health daily.
More information on observing solid general health practices in the current environment is available here.
I know this is not where we all wanted to be right now in terms of public health risks in our activities together. It remains a lot for us to deal with mentally and emotionally, as well as physically. We remain committed to the safety and health of everyone in our community—a professional education community within a larger university campus. As service professionals, we are counseled in the Preamble to the American Bar Association’s Model Rules of Professional Conduct to “demonstrate respect for the legal system and for those who serve it.” And those of you who consider yourselves to be VFLs (Vols for Life) likely know that the Volunteer Creed—the heart of our campus values—similarly reminds us that we bear the torch in order to give light to others. As aspiring legal professionals and Tennessee Volunteers (a/k/a Law Vols), we therefore commit to caring for one another and for the members of the communities in which we live, work, and learn. It is important that we demonstrate professionalism and the Volunteer spirit by following health requirements and guidance as the same becomes available to us.
Civil, inclusive, professional environment: Our classroom and course website are professional education and work settings within our overall College of Law community. As such, they are places for open, frank, and sometimes difficult conversations and debates. Respect, inclusion, reflection, and tolerance are values inherent to this environment. Each class member is responsible for upholding these values in communications and other conduct. I note also in this regard the campus principles of civility and community, which can be found at http://civility.utk.edu. (I make a cameo appearance in the video on the principles that is found here.) These principles are at the core of what we do.
Please help me in creating a welcoming environment for our class community. If you use a name or pronouns other than what is represented in the course roll or might expect, please email me with your preferred name or pronouns. Also, please offer me help in pronouncing your name correctly—either in advance or through critical feedback if I err.
There obviously is a lot of customization in this language. But I hope that there are a few nuggets in these paragraphs that are useful to some of you. For the sake of completeness, I should note that I am using this text in a master course syllabus and have a separate reading syllabus for each course that only includes the assignments and related instructions.
I wish all well as we begin another semester and year.
Tuesday, July 6, 2021
In 2008, my university (Belmont University) was supposedly the first to offer a social entrepreneurship major. Since then, not only have the schools offering majors in social entrepreneurships grown, but many schools have created centers, institutes, or programs dedicated to the area. Below I try to gather these social enterprise centers in universities. The vast majority are in business schools, some are collaborative across campus, and a few are located in other schools such as law, social work, or design. A few have a specifically religious take on business and social good. Happy to update this list with any centers I missed.
Lewis Institute at Babson https://www.babson.edu/academics/centers-and-institutes/the-lewis-institute/about/#
Christian Collective for Social Innovation at Baylor https://www.baylor.edu/externalaffairs/compassion/index.php?id=976437
Center for Social Innovation at Boston College https://www.bc.edu/content/bc-web/schools/ssw/sites/center-for-social-innovation/about.html
Watt Family Innovation Center at Clemson https://www.clemson.edu/centers-institutes/watt/
Center for the Integration of Faith and Work at Dayton https://udayton.edu/business/experiential_learning/centers/cifw/index.php
CASE i3 at Duke https://sites.duke.edu/casei3/
Social Innovation Collaboratory at Fordham https://www.fordham.edu/info/23746/social_innovation_collaboratory
Social Enterprise & Nonprofit Clinic at Georgetown https://www.law.georgetown.edu/experiential-learning/clinics/social-enterprise-and-nonprofit-clinic/
and Beeck Center for Social Impact and Innovation at Georgetown https://beeckcenter.georgetown.edu
Global Social Entrepreneurship Institute at Indiana https://kelley.iu.edu/faculty-research/centers-institutes/international-business/programs-initiatives/global-social-entrepreneurship-institute.html
Business + Impact at Michigan https://businessimpact.umich.edu
Social Enterprise Institute at Northeastern https://www.northeastern.edu/sei/
Center for Ethics and Religious Values in Business at Notre Dame https://cerv-mendoza.nd.edu
Skoll Centre for Social Entrepreneurship at Oxford https://www.sbs.ox.ac.uk/research/centres-and-initiatives/skoll-centre-social-entrepreneurship
Wharton Social Impact Iniviative at Penn https://socialimpact.wharton.upenn.edu/
and Center for Social Impact Strategy at Penn https://csis.upenn.edu
Faith and Work Initiative at Princeton https://faithandwork.princeton.edu/about-us
Center for Faithful Business at Seattle Pacific https://cfb.spu.edu
Center for Social Innovation at Stanford https://www.gsb.stanford.edu/faculty-research/centers-initiatives/csi
Social Innovation Initiative at Texas https://www.mccombs.utexas.edu/Centers/Social-Innovation-Initiative
Taylor Center for Social Innovation and Design Thinking at Tulane https://taylor.tulane.edu/about/
Social Innovation Cube at UNC https://campusy.unc.edu/cube/
Social Innovation at the Wond’ry at Vanderbilt https://www.vanderbilt.edu/thewondry/programs/social-innovation/
Program for Leadership and Character at Wake Forest: https://leadershipandcharacter.wfu.edu/#
Program on Social Enterprise at Yale https://som.yale.edu/faculty-research/our-centers/program-social-enterprise/programs
Monday, June 28, 2021
Earlier in the year, I had the privilege of being interviewed by Mike Madison at Pitt Law about my work, including my business law and leadership teaching and scholarship. Mike hosts and produces a nifty podcast called The Future Law. The subject matter of his podcasts ranges across a spectrum of law and innovation topics.
Last month, he posted the edited recording of our interview under the title: Joan Heminway, on Corporate Law and Leadership. It is about a half hour in length. Many readers already know me and my work pretty well (but if you want to know more in a quick fashion, feel free to read this campus Faculty Spotlight that was published earlier this spring). However, I thought those of you who teach in law schools might appreciate knowing about (and maybe even listening to) this podcast. Among other things, I walk through UT Law's leadership courses and explain their content and context and talk a bit about the natural overlap between business law and leadership (which I earlier wrote about here).
As Mike notes, we met as fellow presenters earlier this year at Santa Clara Law's symposium on Lawyers, Leadership, and Change: Addressing Challenges and Opportunities in Unprecedented Times. My essay emanating from that presentation will be published by the Santa Clara Law Review later this year. (Some of you may recall that I presented an idea paper on teaching change leadership to law students at the 2021 Association of American Law Schools conference back in January. The Santa Clara Law Review essay is the long-playing version of that idea paper.)
As the Interim Director of UT Law's Institute for Professional Leadership, I am spending part of my summer reviewing and assessing the leadership curriculum at UT Law and connecting with other leadership educators across our campus. I also am working with an amazing rising 3L (my 2021-22 fellow at UT Law's Institute for Professional Leadership) to plan for the coming academic year. He and I are continuing to edit and publish our Leading as Lawyers blog throughout the summer. It is energizing to be working on all of this alongside my business law scholarship this summer--especially in a work environment that is free of emergency planning and lessons on hybrid and online teaching methods and technology, the use of personal protective equipment, and the institution of new public health precautions in our law schools. I hope to accomplish a few things over the course of the next six weeks and have more to write about on this topic as plans and initiatives progress.
Sunday, June 27, 2021
Our relatively new Transactional Skills program has been such a success that we need to hire one or two additional adjuncts immediately for the Fall. Our current adjuncts work for BigLaw, in-house, and boutique firms. Classes start in August but the current sections are full and 2Ls start registration on Tuesday.
The course description is below:
This interactive, practice-oriented course will be structured around the acquisition of an asset or business and some of the key agreements required to complete the transaction. Students will act as junior associates and work on one deal throughout the semester representing either the buyer or seller. Although the class will focus on certain provisions common to all contracts, students will negotiate and draft documents which may include a non-disclosure agreement, letter of intent outlining the main terms, due diligence memo, portions of an asset purchase agreement, a licensing agreement, or an employment agreement. Students will also communicate in writing to their clients throughout the duration of the transaction and will learn the proper selection and use of form agreements. Grades will be based on class participation, group and individual assignments, and a take-home exam, which will consist of writing an agreement. Students will watch videos each week from Professor Weldon discussing foundational drafting concepts and common contracts used in commercial transactions and will work in small groups with practitioners in class to work on drafting, negotiations, and simulations.
There is a small stipend but the real reward is when you hear students say that this was the most valuable course they took in law school. If you live in South Florida, you can choose to teach in person or online. It’s a lot of work but I prepare all materials. The adjunct brings in experiences and forms (not required); has one mandatory meeting with the student; and marks up an NDA and the final contract.
If you or someone you know has at least ten years of experience as a transactional lawyer and has an interest, please email a resume to me at email@example.com. I’m happy to answer questions if you want more information before applying.
We would like to get adjuncts on board ASAP so that we can add sections. Students are already registering and the current sections have waiting lists.
Sunday, May 30, 2021
Grading done? Join in for an engaged, energizing day with fellow business law profs to start the summer.
Grading not done? This is sure to be a fun and enlightening distraction--better than house cleaning or laundry!
Not grading at all (you lucky ducky)? Clear the decks of other impediments and come join us for what always is a super day filled with teaching tips and catalysts for scholarship and service.
REGISTER NOW! CONFERENCE IS JUNE 4th!
Emory Law's 7th biennial conference on the teaching of transactional law and skills is just a few days away! Register here and join us on Friday, June 4th. (Note: The Registration Fee for this one-day, online conference is $50.) A copy of the Conference schedule is posted here.
Connect with transactional law and skills educators across the country to ponder our theme - "Emerging from the Crisis: The Future of Law and Skills Education." You'll hear illuminating keynote addresses from three leaders in our field - Joan MacLeod Heminway, Marcia Narine Weldon, and Robert J. Rhee. And you'll participate in exciting presentations and try-this exercises designed to help us all become better teachers.
At day's end, we'll hold a Vision Workshop to synthesize our vision for the future. We'll also announce the winner of the Tina L. Stark Award for Excellence in the Teaching of Transactional Law and Skills, chosen from a group of illustrious nominees.
Special Note: The State Bar of Georgia has approved our conference for four CLE credits. We will provide attendance certificates for other states.
Friday, May 28, 2021
A reminder that Emory’s 2021 conference on transactional law and skills education is next Friday, June 4, 2021. It is virtual and registration is only $50. Register here.
Today, I'm submitting a guest post by Professor Jen Randolph Reise of Mitchell Hamline School of Law. On Friday the 11th, I'll post my reflections from the Emory conference. Jen and I have bonded over our mission to bring practical skills into the classroom. Her remarks are below:
I’m looking forward to hearing from many leaders in transactional legal education, including keynote speakers Joan MacLeod Heminway, Marcia Narine Weldon, and Robert J. Rhee on the theme of “Emerging from the Crisis: Future of Transactional Law and Skills Education.” Marcia will also be talking about her experience launching a transactional program at Miami, joined by three of her adjunct professors.
For my part, I’ll be presenting a Try-This session sharing how I have used exercises that integrate key technological resources and techniques into teaching doctrinal courses. I’ve written in this blog before in praise of practice problems, especially in the asynchronous or flipped classroom. These exercises take that one step farther by creating a self-paced, guided discovery and low-stakes practice of some skills and resources they will need to be transactional lawyers.
Specifically, participants in the Try-This session will be introduced to, and invited to try, three exercises I have created and used in Business Organizations and M&A:
1) a State Filings Exercise, which facilitates student discovery of their state’s business entity statutes and secretary of state filing site (for example, they learn how to form an LLC, and what information on LLCs is publicly accessible);
2) a Public Company Filings Exercise, which guides students through accessing and understanding the structure of public company SEC filings and how to retrieve pertinent information from EDGAR; and
3) a Working with Definitive Agreements Exercise, which introduces M&A students to drafting based on samples and from a term sheet, and requires them to learn to create a redline using Word’s Compare feature.
I’d love to have you attend on Friday and share your experiences and feedback. Or, feel free to contact me at firstname.lastname@example.org or on Twitter @JensJourneyOn anytime for copies or to share ideas. As a transactional in-house lawyer, newly come to the academy, I’m passionate about students getting a foothold in the distinct perspective, skills, and technology they need to become successful transactional lawyers.
Monday, May 17, 2021
North Carolina Central University School of Law is seeking to hire a lateral professor at the Associate or Full rank to serve as the inaugural Intel Technology and Social Equity Endowed Chair. The person hired will be expected to teach two upper level technology law courses and one first year course. The areas of first-year course need include Contracts, Civil Procedure and Torts. The position will start July 1, 2022. Applicants should be willing and available to teach using in-person, remote, or hybrid formats, depending on the needs of the particular classes.
Applications will be considered until the position is filled. For priority consideration, please apply by July 1, 2021. Application materials should include a cover letter, CV, and the names and contact information of at least three references. Application materials and general inquiries should be submitted to April Dawson, Associate Dean of Technology and Innovation at email@example.com.
North Carolina Central University School of Law was founded in 1939 to provide an opportunity for legal education to African Americans. The School of Law now provides this opportunity to a more diverse student body than any other in the nation, as it pertains to race and gender. This environment of diversity better prepares our students to effect positive change in the broader society. The student body consists of approximately 400 students and 31 full-time faculty members.
North Carolina Central University, an EEOC/AA employer, complies with the Immigration Reform and Control Act of 1986. All new employees must provide original documents verifying identity and employability within the first three (3) days of employment with the University. Accommodations for applicants who qualify under the Americans with Disabilities Act or Section 503 of the Rehabilitation Act of 1973, as amended, are available upon request.
Wednesday, April 21, 2021
I’m finishing my second semester of teaching Legal Environment of Business, an introductory undergraduate business law course, asynchronously. One of the challenges of an asynchronous course is creating a sense of community among students. I’ve previously blogged about using negotiation exercises in my business law courses (here and here). In this post, I want to share with readers how I’ve continued to use such materials in my asynchronous courses to promote experiential learning and to create a sense of community.
Canvas is the learning management system for my courses. My asynchronous courses are organized into weekly modules. Students can find all materials for a specific week (assigned readings, videos, assignments etc.) in that week’s module. The feedback I’ve received indicates that students find this an easy to follow format. So, for any week in which there is a negotiation exercise, the students’ role assignments, the negotiation materials, and the assignment itself will be posted in that week’s module. For each exercise, I use Canvas groups to randomly organize students into negotiation teams. Use of Canvas groups also facilitate students’ ability to contact each other, coordinate their negotiation, and complete their assignment. I group students into a different team for each negotiation. Students can negotiate by Zoom or in person. I recommend that a date be set by which students must have a date/time arranged for the negotiation and the completion of the assignment. In the related assignment, students are generally asked to reflect upon the negotiation and to apply the related chapter materials to the negotiation context. Readers are welcome to reach out to me for additional logistical details/advice/assignment information. In the remainder of this post, I’ll mention a bit about each negotiation exercise that I’ve used in my asynchronous courses this semester.
House on Elm Street. I use this negotiation with the chapter on business ethics. It’s a great exercise and its free (thank you, Professor George Siedel)! It not only raises ethical issues, but it also powerfully demonstrates the importance of creative thinking and of understanding your negotiation counterparty’s underlying interests.
Waltham Construction Supply Corp. v. Foster Fuels, Inc. In this negotiation, Waltham trucking alleges that antifreeze purchased from Foster Fuels had a corrosive impact on its trucks. I use this negotiation with the chapter covering alternative dispute resolution because the materials themselves include both a bilateral negotiation and a video mediation of the case. Students can watch the video after the exercise to learn about mediation. Another great thing about this exercise is that once the video is purchased from Harvard’s Program on Negotiation (PON), you can use the accompanying negotiation materials without paying additional fees.
DirtyStuff II. In this negotiation, a variety of stakeholders are negotiating the text for an administrative agency rule set for proposal about the regulation of an industrial by-product. Naturally, I use this six-student negotiation in covering administrative law. I think it’s a great way to promote students’ understanding of the administrative rulemaking process.
Super Slipster. I love this negotiation because it reminds me of using backyard water slides when I was a kid! From a quick Google search, I see that these slides are way fancier now than back then (well, I guess it has been a few years…)! Fortunately, I don’t recall anyone becoming seriously injured from such products. Unfortunately, Adam Sidwell suffers serious injuries after using the Super Slipster, making this negotiation exercise a perfect accompaniment in covering tort law/products liability.
Finally, Harborco, a six-player negotiation about the building of a new port, is one of PON’s most popular exercises and generally a student favorite. It’s a great capstone exercise (I use it at the end of the course) and way to have students apply contract law in an experiential context.
Friday, March 26, 2021
Yesterday, I had the honor of leading a roundtable discussion on women and the practice of business law. The roundtable was part of a series convened by UT Law's Student Council on Diversity and Inclusion, and this specific roundtable was hosted by our Black Law Student Association. Here's the promotional flyer from the event.
In preparing for the session, I had occasion to review two ABA reports from the past few years: Roberta D. Liebenberg & Stephanie A. Scharf, Walking Out The Door : The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice (ABA 2019), and Destiny Peery, Paulette Brown & Eileen Letts, Left Out or Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-term Legal Careers for Women of Color (ABA 2020). I was reminded of the fall-off in female lawyers in BigLaw over the course of their careers. Quoting from the first report:
BigLaw is no stranger to the loss of experienced women attorneys. While entering associate classes have been comprised of approximately 45% women for several decades, in the typical large firm, women constitute only 30% of non-equity partners and 20% of equity partners. Women lawyers face many other challenging hurdles as they seek to advance into senior roles: the number of lawyers named as new equity partners at big firms has declined by nearly 30% over the past several years, and firms are increasingly relying on the hiring of lateral partners, over 70% of whom are men.
At the event, I noted this data and the principal reasons why women self-reported that they left practice. These include: care-taking obligations, workplace stress levels, responsibilities for marketing/originating business, billable hour requirements, loss of the desire to practice law, work/life balance dissatisfaction, and concerns about personal or family health.
I also noted specific difficulties faced by women of color. In that regard, I referenced the following quote from a Black female lawyer in her late 40s (included in the second ABA report mentioned above).
Some of the barriers you can’t do [anything] about—like the(mis)perceptions people have in their own minds about your race or your sex or your background. So you start by having to overcome those negative assumptions, stereotypes, and presumptions. And then there’s the ‘black tax’ of having to demonstrate outsized achievements just to get the same opportunities as everyone else. It’s not by accident that at the firms at which I worked, every single black associate had at least two Ivy League degrees. Majority associates? Not so much.
There were no real surprises for me in these two reports. Having said that, I must note that they capture important data and reflections. I recommend that everyone read them.
Of course, only some female law graduates (a relatively small number/percentage) start their careers in business finance or governance. The number/percentage of female lawyers in large business law practices typically does not increase over time; it decreases. Therefore, the number/percentage of women in those practice areas at the partner/shareholder/senior leadership level is relatively small. (By the way, please let me know if you know where I can find some recent reliable data on all this.)
I noted the relatively small percentage of women who enroll in my upper division advanced business law courses (a maximum in any course of 33-1/3%, and that's pretty rare). I asked the student participants for their ideas on why more women do not take these courses or, in general, express a desire to practice business law. Among the responses were the following: not having been exposed to business lawyers or business operations, being intimidated by the subject matter, and being concerned that too much math may be involved. I also asked them how we might work to correct the imbalance in business law and more generally. Students volunteered their observations and ideas. The were thoughtful, reflecting on their own experiences while also working hard to appreciate the circumstances of others. One of the female students pressed her male colleagues to contribute. It was a super discussion. Several students contacted me after the roundtable to follow up on some points.
We only had an hour together, which was barely enough time to begin to scope out these issues. There was certainly more that could have been said had there been more time. I invited students to continue the conversation among themselves and with me and other faculty. I have hope they will do that. I want to ensure that business law knowledge and practice is accessible to all, and I could use their help in accomplishing that goal.
Monday, March 22, 2021
Registration is Open!
It is our great pleasure to announce that registration is now open for the seventh biennial transactional law and skills education conference to be held virtually on June 4, 2021. Please join us to celebrate and explore our theme – Emerging from the Crisis: The Future of Transactional Law and Skills Education with you. This year, we have reduced the registration fee to $50 per person. Secure your space today!
Call for Proposals
Please take a moment to review the Call for Proposals and submit your proposal here. Also, please share the CFP with your colleagues who may not have attended the Conference before. Consider forwarding it to adjuncts and professors teaching relevant subjects. Can you also think of any teachers who might be interested in attending or presenting?
The Call for Proposals deadline is 5 p.m. April 15, 2021. We look forward to receiving your proposals.
Last, but certainly not least, at this year’s Conference, we will announce the winner of the second Tina L. Stark Award for Teaching Excellence. Would you like to nominate yourself or a colleague for this award? More information will be forthcoming regarding award eligibility and the nomination process.
If you have questions regarding any of this information, please contact Kelli Pittman, Program Coordinator, at firstname.lastname@example.org or 404.727.3382.
We look forward to “seeing” you in June!
Sue Payne | Executive Director
Katherine Koops | Assistant Director
Kelli Pittman | Program Coordinator
Monday, February 8, 2021
I tell my students that the participants in securities transactions are "the three Is" or "I3": issuers, intermediaries, and investors. Tomorrow morning, having covered the definition of a security and the concept of materiality, I offer some foundational words on investors.
What to tell? Of course, I will talk a bit about investment theory, the investor protection policy and mechanisms of federal securities law, the composition/demographics of the typical equity ownership of a public company, etc. But what do I say about GameStop Corp.? Set forth below is a chart summarizing the trading in GameStop common stock for the past five days: (courtesy of Google Finance):
Who are the investors in the market for GameStop common stock, options, and short positions now? Who will they be in a month or six months or a year (assuming a trading market can be sustained)? And what do the changes in GameStop's investor profile say about the firm itself, about the New York Stock Exchange, and about various related aspects of securities regulation?
There remain few answers to the fundamental question of who owns or is trading in GameStop's publicly traded common stock. Nevertheless, there are many worthy conversation starters around the GameStop phenomenon that raise interesting opportunities for longer-term exploration. More on all this as time marches on. "Once more unto the breach, dear friends, once more . . . ."
[Editorial note (2/9/2021): I should have mentioned that I do plan to use John Anderson's post from Saturday (which echos points he made in our UT Law roundtable last week) to talk about whether some of the people he mentions or alludes to (thrill-seekers, political speech purveyors, trading gamers, populist performers, nostalgic market-watchers) are or should be considered to be investors.]
Monday, February 1, 2021
Wow. All I can say is . . . wow. Last Monday, GameStop Corp. was, for me, just a dinosaur in the computer gaming space--a firm with a bricks-and-mortar retail store in our local mall that I have visited maybe once or twice. What a difference a week makes . . . .
Now, GameStop is: frequent email messages in my in box; populist investor uprisings against establishment institutional investors; concern about students investing through day-trading accounts; news and opinion commentary on all of the foregoing (and more); compulsion to inform an under-informed (and, in some cases, bewildered) community of friends and family. This change of circumstances, which is centered on, but not confined to, the volatile market for GameStop's common stock, raises many, many questions--legal questions and factual questions. Some are definitively answerable, others are not.
The legal questions run the gamut from possibilities of securities fraud (including insider trading) and market manipulation, to the governance of trading platforms, the propriety of trading limitations and halts, and the authority and control of clearinghouses. Co-blogger Ben Edwards published a post here last Thursday on the trading halts in GameStop stock, the role of clearinghouses, and the possibility of market manipulation. Others also have written about these and other legal issues--including the role of the U.S. Securities and Exchange Commission as the cop on the beat (see, e.g., here and here).
But there are few answers to these legal queries given that many facts remain unknown. Who are the short-sellers in these stocks? Who are the community members on electronic bulletin boards (and elsewhere) urging active trading in the stock of GameStop and other firms that have been subject to significant short-selling that has led to perceived under-valuation by others in the market? Who are the populist traders actively bidding up the price of these firms? What knowledge do all of these people have about GameStop and the trading of its securities? Assumptions are being made about all of these things and more. However, our current knowledge is limited and, as time progresses, the composition of these groups undoubtedly has changed and will continue to change as traders rapidly enter and exit the market for these securities.
As many of our law schools hold forums on the GameStop phenomenon (UT Law has a roundtable featuring some of your favorite BLPB editors on Wednesday), more legal and factual questions will be raised. The situation will be dynamic, and regulators and policymakers will enter the fray in unknown (and perhaps unanticipated) ways. As I teach Securities Regulation and Advanced Business Associations this semester, all of this will be happening. Some of the topics of conversation would not normally be part of my course plans. But, like others I know who teach business law courses, I am pivoting to meet the need to respond to these evolving circumstances in our securities markets. Throughout, there are many roles that lawyers (and law professors) are playing and will continue to play. I suspect GameStop will be an asset this semester in educating our students on securities law and much more.
Monday, January 18, 2021
As we launch into another online/hybrid semester of legal education, I want to share a new article by Jen Randolph Reise: Moving Ahead: Finding Opportunities for Transactional Training in Remote Legal Education. Here’s the abstract:
This article builds on the many calls for teaching business acumen and transactional skills in law school with a timely insight: the shift to remote legal education creates opportunities to do so, in particular by incorporating practice problems and mini-simulations in doctrinal courses. Weaving together the literature on emerging best practices in online legal education, cognitive psychology, and the science of teaching and learning, Professor Reise argues that adding formative assessments and experiential education is effective in teaching and is critical in remote learning.
Offering vivid examples from her experience teaching Business Organizations online, she urges legal instructors to use the opportunity presented by the shift to remote education to incorporate problems and simulations as an effective way to motivate students to prepare for class, to expose them to transactional practice skills, and to effectively teach them key doctrinal concepts.
For those of you who do not know Jen, she is currently a Visiting Professor at Mitchell Hamline School of Law (Twitter: @jenreise). She and I have communicated/traded information on transactional business law teaching. I am grateful that she brought this article to my attention--and effectively authored this post! I look forward to continuing to engage with her on teaching and scholarship in our mutual areas of interest.