Friday, March 26, 2021

Women & Business Law

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.

SCDIRoundtableAnnouncement

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.

March 26, 2021 in Joan Heminway, Law School, Teaching | Permalink | Comments (2)

Monday, March 22, 2021

2021 Emory Law Conference on the Teaching and Transactional Law and Skills

EmoryConference2021

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 kelli.pittman@emory.edu or 404.727.3382.

We look forward to “seeing” you in June!

Sue Payne | Executive Director

Katherine Koops | Assistant Director

Kelli Pittman | Program Coordinator

March 22, 2021 in Conferences, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, February 8, 2021

Tomorrow In Securities Regulation: Investors

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):

Screen Shot 2021-02-08 at 11.54.19 PM

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.]

February 8, 2021 in Joan Heminway, Securities Regulation, Teaching | Permalink | Comments (2)

Monday, February 1, 2021

Prediction: GameStop Will Be 2021's Great Gift To Business Law Professors

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.

February 1, 2021 in Corporate Finance, Joan Heminway, Securities Regulation, Teaching | Permalink | Comments (4)

Monday, January 18, 2021

In Praise of Practice Problems (and Jen Reise!)

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.

January 18, 2021 in Business Associations, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, January 4, 2021

AALS 2021 - Teaching Leadership in Law Schools

As our legal academy readers know, this week features the annual conference of the Association of American Law Schools ("AALS"), the professional association for law schools and their faculty and staff.  I am sure many of us will publish posts now and later about the conference and its varied programs.  I focus today on the Section on Leadership, of which my Dean (Doug Blaze) is the current chair.  Doug has been among the national leaders in the movement to teach leadership in law schools.  Among other things, he was a founder of the section and of the Institute for Professional Leadership at UT Law (of which I am the current Interim Director).

I highlight two things in this post.

First, the Fall 2020 section newsletter deserves attention.  The entire issue focuses on racism.  It includes a number of short articles written by a variety of contributors, including (but not limited to) law professors.  Tony Thompson, Professor of Clinical Law at NYU Law, introduces the issue, referencing the events that catapulted racism and racial injustice into the legal news and public eye in meaningful ways earlier this year.  He writes: "T]he public protests have . . . sparked . . . a relentless insistence that we acknowledge the stark reality that racism infects every system in this country. We as lawyers, as law teachers, as people who care about justice must actively work toward a genuine reckoning on race and racism in this country."  Among the contributions are articles written by Berkeley Law Dean Erwin Chemerinsky, a prep school student from Newark, New Jersey, and our Visiting Leadership Fellow at UT Law, David Gibbs.  The issue makes for thought-provoking end-of-year reading and inspires leadership on race issues in and through law teaching (among many other things).

Second, I want to promote the four programs sponsored or co-sponsored by the AALS Section on Leadership.  They are listed below.

  • Calling Out and Leaning In to Racial and Class Inequities in Experiential Learning Opportunities (Wednesday, January 6, 11:00 am - 12:15 pm)
  • Never Let A Good Crisis Go To Waste; The Pedagogy of Leadership During Crisis—Student Engagement (Thursday, January 7, 11:00 am - 12:15 pm)
  • Legal and Judicial Ethics in the Post-#MeToo World (Thursday, January 7, 2:45 pm - 4:00 pm)
  • Teaching Leadership Skills in a Time of Crisis (Saturday, January 9, 2:45 pm - 4:00 pm)

I have the honor of presenting a short "idea paper" on teaching change leadership to law students at the Thursday morning session.  I hope that you will join me in attending some or all of these programs if you are registered to attend the conference.  Our students are the legal and community leaders of tomorrow.  Studying and practicing leadership in law school can help them to see their leadership potential, harness it, and use it constructively in and outside law practice.

The entire program for this year's AALS annual meeting can be found here.

January 4, 2021 in Conferences, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, December 28, 2020

Recent Part-Time and Visiting Law Faculty Postings: Temple Law and Boston University Law

This post catches up on a few recent position listings that may be of interest to business law faculty and have not yet been posted here.

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TEMPLE UNIVERSITY BEASLEY SCHOOL OF LAW

LOW INCOME TAXPAYER CLINIC DIRECTOR
AND VISITING PRACTICE PROFESSOR OF LAW

Position Summary: The Temple University Beasley School of Law was recently notified that it will receive funding from the IRS to open and operate a Low Income Taxpayer Clinic (LITC) on its Main Campus in North Philadelphia which will also serve taxpayers in northeastern Pennsylvania. It is therefore soliciting applications for the position of Visiting Practice Professor of Law and Director of the LITC, which is expected to operate on a part-time basis during 2021. The position will begin on January 15, 2021 or as soon thereafter as practicable, and will run through the end of the calendar year. The Clinic Director will be expected to establish and operate the LITC, including developing a panel of pro bono attorneys and performing community outreach, and to take a leadership role in applying to the IRS for a multi-year grant, which will likely need to be submitted in June, 2021. In addition, the Clinic Director will be expected to develop and teach a course through which students can enroll to participate in the LITC for academic credit in 2021.

It is anticipated that this part-time, visiting position will be enhanced and converted into a clinical faculty position upon receipt of a multi-year grant from the IRS. A national search for an individual to fill the clinical faculty position will be conducted if the multi-year grant is received; the individual selected to fill the part-time visiting position will be eligible for consideration for the clinical faculty position.

Minimum Qualifications: Candidates must have an excellent academic record and a J.D. degree, as well as experience working in an LITC or equivalent organization, either as a student or practicing lawyer, or other tax practice experience. Candidates must have sufficient tax law expertise to perform and oversee the substantive and procedural aspects of client representation, and be either admitted to practice before the U.S. Tax Court or eligible for such admission.

Temple University values diversity and is committed to equal opportunity for all persons regardless of age, color, disability, ethnicity, marital status, national origin, race, religion, sex, sexual orientation, gender identity, veteran status, or any other status protected by law; it is an equal opportunity/affirmative action employer, and strongly encourages veterans, women, minorities, individuals with disabilities, LGBTQI individuals, and members of other groups that traditionally have been underrepresented in law teaching to apply.

To Apply: Potential candidates are encouraged to contact the selection committee’s Chair, Professor Alice Abreu, at lawfsc@temple.edu with the following: 1) cover letter and/or statement of interest; 2) resume or CV; 3) the names, affiliations, and contact information for at least three individuals who can serve as professional references; and 4) any other material that demonstrates the candidate’s ability to succeed in the position, such as a publication, brief, or similar document.

Applications should be submitted as soon as possible; interviews, which will be conducted online, could begin as early as January 4, 2021. The position will remain open until filled. 

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BU/MIT TECHNOLOGY LAW CLINIC

VISITING CLINICAL ASSISTANT PROFESSOR

BU Law is hiring for a Visiting Clinical Assistant Professor to teach in the BU/MIT Technology Law Clinic, part of BU Law’s unique collaboration with MIT to provide legal assistance to current MIT and BU students. This is a two-year position, for the 2021–22 and 2022–23 academic years.  

BU Law believes that the cultural and social diversity of our faculty, staff, and students is vitally important to the distinction and excellence of our academic programs. To that end, we are especially eager to hear from applicants who support our institutional commitment to BU as an inclusive, equitable, and diverse community.

More information and application instructions are available at https://sites.bu.edu/techlaw/2020/12/14/vcap/. Applications received before January 31, 2021 will be given full consideration.

December 28, 2020 in Clinical Education, Joan Heminway, Jobs, Teaching, Technology | Permalink | Comments (0)

Monday, December 14, 2020

Teaching Through the Pandemic - Part XI: The Online Written Final Exam

Few of the ten preceding posts I have offered on teaching during the COVID-19 pandemic (links provided at the end of this post) have even mentioned assessment.  Given that the semester's classes have ended almost everywhere, now seems like a good time to say a few words on that topic, focusing in on written final examinations.  As with everything else in the COVID-19 era, the traditional written, timed final (f/k/a "in class") examination has received some serious scrutiny and reconsideration in 2020.  The UT Law faculty shared ideas and opinions on the topic of online examinations in a number of faculty meetings and forums.  Perhaps predictably, faculty members teaching in different parts of the curriculum (substantively and otherwise) had individualized views about how their own learning objectives could best be met in an online assessment environment.

After much discussion, UT Law ended up offering multiple options to instructors.  For essay questions, we had the choice of using our proprietary portal's exam feature (with download/upload capabilities and full use of all computer functionality, including the Internet) or exam software.  We had the choice of engaging monitoring or not.  Multiple choice questions could be submitted electronically on the portal and hand-graded by the instructor or submitted electronically using exam software and machine-graded.  Bonus: in the end, our Dean of Students offered us the opportunity to have our exams printed--an unexpected (and, in my case, welcomed) addition to the mix.

My Business Associations students took my two-hour written final exam twelve days ago.  I chose a portal-based essay exam with machine-graded multiple choice questions.  I had the exams printed out.  I have not heard back yet from students on the exam process or anything else (for obvious reasons).  But from my standpoint, the exam submission and transmission process seemed to work smoothly.  It differed little, in the end, as a matter of process, from exams I have given in person in the past.  I am so grateful to our academic deans (and the rest of the faculty), our Dean of Students, and the staff from our student records office for all they did to make this exam period safe, manageable, and (yes) possible.

Of course, until I finish grading and can talk to students about their part of the experience, this is about all I can say.  Student views may be wildly different.  I did learn (in the process of working through the exam details with them) that they are not fond of using our exam software for essay questions, since they cannot be looking at the question as they type their answer.  In any event, I will look forward to sharing anything I hear in a later post.

What were your experiences with online written exams this semester?  What are your preferences as to how they are best set up and managed--and why?  I am interested in what others are doing in this regard and what they are learning from those experiences.  Post comments or send me an email message if you have thoughts on any of this.

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Links to prior posts on Teaching Through the Pandemic
(Note: Since I only began adding subtitles after the fourth post, I have added parenthetical topic information for the first four posts.)

Teaching Through the Pandemic - Part I (early distance education and Zoom tips)

Teaching Through the Pandemic - Part II (Zoom connectivity tips)

Teaching Through the Pandemic - Part III (questions about a greater movement to online education)

Teaching Through the Pandemic - Part IV (advanced Zoom tips)

Teaching Through the Pandemic - Part V: First Impressions of a Hybrid Classroom

Teaching Through the Pandemic - Part VI: Labor Day

Teaching Through the Pandemic - Part VII: Technology Experiments

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

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

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

December 14, 2020 in Joan Heminway, Teaching, Technology | Permalink | Comments (0)

Saturday, December 5, 2020

Sabbatical Thoughts

This coming spring, I am on sabbatical.

Typically, I teach 4 courses per semester – each with 5 to 8 decent-sized assessments. Among other responsibilities, I am a pre-law advisor for our undergraduate students. So the school year tends to be a bit of blur.

Our fall semester ended just before Thanksgiving, and I already miss teaching. That said, I do feel fortunate to be on sabbatical during what will be another hybrid-teaching semester for us. While hybrid, masked teaching was O.K., it did not hold a candle to typical in-person teaching in my opinion.

In any event, I have my main writing project for the spring (somewhat) mapped out, but would love thoughts on sabbaticals in general for those who have taken them. Some of my plans are a bit uncertain, given the pandemic. In addition to research/writing, a few things I hope to do are – take another Open Yale Course, connect/reconnect with business lawyers/judges in Nashville, and give a few presentations (if COVID allows).

Anyway, feel free to e-mail me here or leave a comment below.

December 5, 2020 in Business School, Haskell Murray, Research/Scholarhip, Teaching | Permalink | Comments (0)

Monday, November 23, 2020

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

BA(MasonJones-1)

I wanted to get there first, but friend, co-blogger, and Nova Southeastern Law colleague Jim Levy beat me to it.  In a blog post for Legal Skills Prof Blog, Jim wrote about the incredible similarities between the game show Hollywood Squares and Zoom teaching.  As I teach my last classes of the semester today--all online (thanks to our dean's promotion of online teaching for the last two class days of the semester)--I continue to be stuck on  and struck by this similarity.  We are not the only ones to note this comparison, of course.  See, e.g., here and here and here.

I have called the Zoom squares the Hollywood Squares more than once during my class sessions this semester.   Unlike Jim, however, I have not yet endeavored to "play host" in a way that mimics the show.  He recalls (as do I) Peter Marshall's lengthy stint as the show's host.  But it does turn out there were others.

As I bid goodbye to the Fall 2020 semester, I leave you with a picture (above) of one of my class meetings earlier this fall.  UT Law alum and entrepreneur Mason Jones (founder of Volunteer Traditions, Inc.) visited our class to talk about the formation and basic governance attributes of the corporation he organized to conduct his business.  It's a super-fun story--very instructive, too--and he is a humble and entertaining guy.  We were delighted to have him join our Hollywood Squares (and even be spotlighted, as he is here!) for this class day.  (Note that I was wearing a hat and t-shirt from his collection that afternoon while teaching.  Go Vols!)

I am still formulating some additional substantive thoughts on my first full semester of pandemic teaching.  I will post those reflections on a later date or dates.  For today, however, in this Thanksgiving week, I merely want to express gratitude--for the Hollywood Squares that are our Zoom teaching world and, more importantly, for my continued good health, my supportive family, my hardworking students, and my student-focused faculty and staff colleagues.  Without these blessings in my life, teaching through the pandemic would be so very much harder, if not impossible. 

Happy Thanksgiving, y'all. 

#HollywoodSquares 
#GiveThanks

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

Friday, November 13, 2020

One Simple Strategy for Addressing Race Relations in Your Class, at the Law School, and in the Firm

Some time ago, one of my students reached out to me about strategies for improving race relations at our law school. After some discussion, we arrived at the idea of starting an informal brown-bag lunch group that would discourse on race. The student invited 10 students, taking care that the group would be diverse as to race. He explained that the goals of the group would be to:

(1) Gain some new appreciation of racial diversity;

(2) Gain some new understanding of people with a different racial identity;

(3) Learn about ways of using diversity to the advantage of your legal practice/business/personal life/community;

(4) Change negative assumptions about race to positive assumptions; and

(5) Motivate every participant to leave his/her comfort zone and take some positive step towards change and reconciliation.

We developed a simple exercise for the first meeting. We put together a questionnaire (in Microsoft Word) and emailed it to all the participants in advance of the meeting. We asked them to complete the questionnaire in the word document (so no identifying handwriting), print it out, and bring it to the lunch. We explained that the questionnaires were to be anonymous, and we asked students to take care not to leave any names or other identifying information on their printed answers. When the students arrived for lunch, we asked them to drop them in a box at the entrance. Once everyone had arrived, we (a) shuffled up the papers in the box, (b) pulled them out, (c) picked one question, (d) read ALL the answers back to back, and then (e) discussed.

We thought we would get through all or most of the questions at the first lunch. We ended up only getting through two! The discussion was so rich, honest, and enlightening. I left feeling like I had just experienced something very special—like the scales had fallen from my eyes. The anonymity offered an opportunity for every participant to really let loose! They had no fear of offending others, or of being judged. It was a free space—and there was real, authentic discourse—not debate or argument. We ended up meeting every other week for the rest of the year. We never did finished all the questions on the questionnaire, but we sure grew closer and gained a better understanding of one another.

Here are some sample questions we included on the questionnaire:

  • Use one word to describe the current state of race relations in the U.S. today.
  • Use one word to describe the current state of race relations here at the law school/at this firm/at this company.
  • What is most likely to frustrate/anger you when conversation turns to race?
  • How do you explain race?
  • What does “diversity” mean to you?
  • What does “inclusion” mean to you?
  • List one positive impact someone of another race has had in your life.
  • List one misconception you think people of other races have about members of your race.
  • When are you most uncomfortable talking about race? (With family? With friends? Among members of another race? With strangers?)
  • How could those around you make it easier to talk about race?
  • What generalizations/stereotypes about your race upset you most?
  • Are there any generalizations/stereotypes about your own race that you think have validity?
  • What is a question you have always wanted to ask someone of another race, but would be afraid or embarrassed to ask?
  • What is your most optimistic vision for race relations in the future?

The exercise developed out of a lunch group, but it can be employed in the classroom as well. It can also be an effective instrument for improving race relations in law firms and businesses.

November 13, 2020 in Teaching | Permalink | Comments (0)

Monday, November 2, 2020

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

Voting-1

Since almost all of us are thinking about Election Day 2020 (tomorrow!), I am taking a moment here to reflect on conversations I recently have had with my students about parallels in political and corporate governance.  Although current conversations center around the fiduciary duties of those charged with governance (a topic that I will leave for another day), just a few weeks ago, we were focused on voting (both shareholder and director voting).  The above photo shows me--sporting wet hair and rain-spotted, fogged-up glasses--waiting in line to vote early last week.  I admit that while I routinely vote in political elections, I have only been to a shareholder meeting once, and then as an advisor to the corporation, not to actually vote any shares held.  Having said that, in my fifteen years of law practice, I did draft proxy materials, structure shareholder meetings, and address concerns associated with shareholder voting.

My students are always curious about shareholder voting and most intrigued by proxy voting.  Corporate governance activities are, of course, not very transparent in daily life for most folks.  A course covering corporate law introduces both new terms to a student's lexicon and new concepts to a student's base of knowledge. 

Shareholder voting certainly has some commonalities with political voting (for example, proxy cards and ballots have a similar "feel" to them, and both systems of voting involve elections and may also involve the solicitation of approvals for other matters of governance and finance).  Yet the system of proxy voting in the corporate world knows no real parallel in political governance, and the Electoral College knows no parallel in corporate shareholder voting.  Moreover, the hullabaloo in 2020 about voting fraud in the political realm seems very foreign in a corporate space that allows people to appoint others to vote for them under the authority of a signature.  (I say this knowing that proxy voting can be affected by miscounts and that challenges can be made to proxy cards in proxy contests in the "snake pit" or "pit," as it may be referred to more informally.)

The system of shareholder voting sometimes seems a bit old-school, despite the advent of electronic proxy materials, online voting, and virtual shareholder meetings--a hot topic of conversation this year, starting back in the spring, when many firms had to move to virtual meetings on an emergency basis due to the COVID-19 pandemic (as the U.S. Securities and Exchange Commission and others well recognized).  Although shareholder voting on blockchains may be the wave of the future (see my coauthored article referencing that, available here), today's shareholder voting mechanics still involve somewhat traditional balloting and ballot tabulation.  Because shareholders can vote in person at the shareholder meeting (even if that may rarely be done), both digital and manual systems must be available to count votes.  Although, when a quorum is present, the election of directors may be ordained before the meeting even begins (especially when plurality voting obtains), the election results cannot be released until the voting ends.  That happens at the shareholder meeting.

Political voting also can seem a bit antiquated--especially with this year's hand-marked ballots replacing electronic voting machines because of COVID-19.  Registered voters can cast their ballots early in many states or can vote in person on election day.  Depending on circumstances, some registered voters may be able to vote by absentee ballot or by mail, but in any case, their votes are tabulated electronically.  There are no quorum or meeting requirements.  The required vote typically is a plurality, which may be difficult to ascertain on Election Day (depending on how many absentee ballots are received and when/how they are counted).  Given the fact that a vote of the Electoral College, rather than the popular vote, actually elects the President of the United States (i.e., voters merely determine the composition of the Electoral College), in close presidential elections, the election results may not be available on or even soon after Election Day.  Thus, while there are common elements to shareholder and political voting, especially as to elections (other than those for the President), voting in corporate governance and voting in political governance situations can be quite different.

Having noted these comparative and contrasting reflections on voting in the corporate and political contexts in honor of Election Day, I recognize that, for many, it is difficult to be impassive about Election Day and voting this year.  Students, colleagues, friends, and family members have expressed to me their hopes, fears, enthusiasm, and anxiety about, in particular, tomorrow's presidential election.  Whatever the result, some will be relieved, and some will be disappointed. 

As a student and teacher of mindfulness practices, I am compelled to note that they can be very useful in moments like these.  They can promote calm, considered, dispassionate reactions and decision-making, and research evidences they can have impacts on the brain that are correlated with stress reduction.  Of course, I recommend mindful yoga.  But meditation, breath work, mindful walking, and other activities through which the brain is able to focus on what is here now, in the present moment (and not on what was or will be), can be helpful in producing a calmer state of mind.  

Cheers to voting and mindfulness practices!  I recommend both as Election Day fast approaches.  And I have already done the voting part . . . .

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

Tuesday, October 27, 2020

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

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I have written about the American Bar Association Limited Liability Institute in this space before.  See, e.g., here, here, here, here, and here.  The 2020 LLC Institute is being hosted virtually and begins next Friday--something to look forward to at the end of election week!  This ABA program is always a premier event, and it is the only national annual program that focuses in exclusively on LLCs and unincorporated business associations.

Importantly, this year's institute is free to law students.  I have recommended registration and attendance to mine.  Click here for more information, including the agenda, list of speakers (including yours truly!), and registration.

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

Monday, October 12, 2020

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

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

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

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

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

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

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

Friday, October 9, 2020

How Are You Doing?

How are you doing? I'm exhausted between teaching, grading, consulting, writing, and living through a pandemic. I actually wasn't planning to post today because I post every other Friday, as a way to maintain some balance. I may not post next Friday because I'll be participating in  Connecting the Threads, IV, our business law professor blog annual conference. It's virtual and you may get up to 8 CLE credits, including an ethics credit. If you love our posts, you'll get to see us up close and personal, and you won't even need a mask.

I decided to do this short post today because it may help some of you, whether you're professors or practitioners. Several years ago, Haskell Murray wrote that he does a mid-semester survey. He asks his students what they like and don't like. I love this idea ... in theory. How many of us really want to know how we're doing? I've done it a couple of times when I knew that the class was going great, but I don't do it consistently. I decided to do it this year because we are piloting a new program modeled after Emory's Transactional Law Program. I used to teach one or two sections of transactional drafting every semester by myself, but now I do the lecture portion (asynchronously) and six adjuncts teach the skills portion in live classes via Zoom (for now). In some ways, it was easier to teach by myself. Five of the six adjuncts are teaching for the first time, and online at that. It's not easy. I also do pre-recorded videos with questions embedded via Feedback Fruits that students must answer. Each week, I review the answers for each of the classes, look for trends and gaps in knowledge, debrief with the adjuncts, hold office hours with the students, and try to find current events related to what we are doing. I also teach two sections of legal writing to 1Ls. My  life is a constant stream of conferences and marking up drafts.

Students tell me they love the transactional drafting class, but what about those who don't say anything? So, I bit the bullet and sent out an anonymous survey to the seventy students enrolled. So far less than 1/3 have responded, but I've already gleaned valuable insight. I sent the survey out two days ago and I've already changed the structure of my videos and am holding a mid-semester review. The students validated my concerns about one of our books. Some students were just glad to be asked. Most important, I won't have to wait until the evaluations at the end of the semester. 

Ironically, when I consult with companies on employee relations or corporate culture issues, I recommend that they do a Start, Stop, Continue or Do More, Do Not Change, Do Less exercise with the employees. I've even led focus groups on this, and employees love it because they feel engaged. As long as the company actually commits to making changes as appropriate, it's a powerful tool.

I challenge you to ask your students or your employees how you're doing, especially in these trying times. You may be surprised. If you have other novel recommendation for getting feedback from students or employees, let us know in the comments.

I hope to see you next week at the Connecting the Threads Conference.

 

October 9, 2020 in Conferences, Haskell Murray, Law School, Lawyering, Marcia Narine Weldon, Teaching | Permalink | Comments (2)

Monday, September 28, 2020

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

BLPB(CircusPhoto)Photo Credit: Pixabay

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

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

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

My biggest gaffs so far include the following:

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

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

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

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

 

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

Monday, September 21, 2020

Teaching Through the Pandemic - Part VII: Technology Experiments

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

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

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

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

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

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

Monday, September 7, 2020

Teaching Through the Pandemic - Part VI: Labor Day

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

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

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

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

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

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

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

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

Monday, August 17, 2020

Teaching Through the Pandemic - Part V: First Impressions of a Hybrid Classroom

On Saturday, I taught Business Planning to the Class of 2020 Professional MBA (ProMBA) Students in the Haslam College of Business at The University of Tennessee, Knoxville.  I have taught business law topics in this program for a number of years now and thoroughly enjoy it as a change-up to teaching law students.  This class is no exception.  And two of the students from this cohort plan to go to law school at some point in the next few years.

The class sessions on Saturday--four hours worth--were taught in a hybrid format, with some of the students in the classroom and some participating in the class remotely through Zoom.  Starting Wednesday, I will be teaching my Business Associations class sessions in a synchronous hybrid flex format with half of the students rotating in and out of the classroom in accordance with a predefined schedule.  The ProMBA program uses classrooms with technology different from that available at the College of Law, did not afford me Zoom hosting privileges that I have at the College of Law, and allows eating and drinking in the classroom.  Nevertheless, parts of the teaching I did on Saturday are analogous to what I will be doing at the College of Law in my Business Associations course.  Given that some of you also may be teaching in a similar format, I offer a few observations on Saturday's hybrid teaching experience here.

  • Sanitizing:  An abundant supply of sanitizing wipes were made available.  The course administrator noted that she had sanitized my work station (podium, keyboard, mouse, mic) before I had arrived, but she was not offended when I also sanitized everything.  A ziplock bag with a travel-sized bottle of hand sanitizer was given to me for my use during class (although I had brought my own).  That was a nice touch.

  • Hosting:  I wish I had asked for hosting or co-hosting status for the class Zoom meeting room.  I wanted to offer a short poll to the remote students, but there was a miscommunication between me and the program administrators.  As a result, my poll had not been added to the meeting in advance.  Also, when the course administrator put the remote students into breakout rooms for a class exercise, I was put into one room as opposed to being able to easily move between rooms.  I worked around these issues, but I would have been able to smooth over these bumps in the class plan execution if I had been the Zoom meeting host or co-host.

  • Producer: The course administrator served as a "producer" for the class session--a term that is being used to describe the person who is monitoring remote students for participant hand raises, questions, comments, technology issues, and course and college compliance.  She sat in the back of the room and raised her hand when a remote student had a question or comment.  At my request, she also conveyed information to the remote students through the chat.  This worked well, although the chat comments and questions sometimes were predictably a bit out-of-sync with the instruction.

  • Acoustics:  The voices of the physically present students did not carry well in the room or through the room mics to the remote students.  I tried to summarize or repeat the questions being asked or comments being made in the physical classroom since I was mic'ed.

  • Masks:  Mask-wearing was a somewhat sloppy/noncompliant.  The masks of some students appeared to be too small to cover their mouth and nose.  Students sometimes (inadvertently, it appeared) pulled their masks down off their noses or even down below their chins.  They seemed to be unaware they were moving/removing their masks.  When students wanted eat a snack or have a drink, of course, they had to at least move--if not remove--their masks to do so. For the most part, however, the students were not close enough to present a marked danger to me or each other.  And there was no belligerent or other refusal to "mask up."

  • Gathering:  Humans are natural attractive magnets.  During the in-class exercise, while most students in the classroom did as I asked and stayed in their seats or in other "eligible" seats in the classroom, I did caution one group to adjust their masks and distance themselves from each other because they stood up and moved to within six feet of each other.  They seemed unaware that their masks may not have been fully covering their mouths and noses and that they had closed in on each other's space.  (This incident occurred near the end of our third 75-minute session.)  But I admit that the students did not look overly concerned that I was offering them cautionary instructions . . . .

I am sure there is more that I could think of if I put my mind to it.  But this is the core of what I noticed.  I did not sense that I was exposing myself to an uncomfortable level of risk.  Teaching in a hybrid format with these ProMBA students (who by now know me reasonably well) was challenging.  In the end, it was neither a bad teaching experience nor the best teaching I have ever done.  But teaching and learning were happening during the class sessions.  I hope that when I am teaching in my home space--with familiar technology, as the host of my class Zoom meetings, with no eating or drinking permitted in the classrooms--things will go a bit more smoothly.  Fingers crossed!

August 17, 2020 in Business School, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, August 3, 2020

SEALS, Jeffrey Epstein, and Equity in Trust Law and Corporate Law

Mitch Crusto, a long-term buddy from past Southeastern Association of Law Schools (SEALS) conferences, contacted me last year about participating in a discussion group at this year's SEALS conference on issues surrounding and emanating from Jeffrey Epstein's significant asset transfers to a trust (for the benefit of his brother) two days before his death, currently ruled to be a death by suicide.  The discussion group, held yesterday afternoon/evening, was designed to explore interdisciplinary approaches to legal problem-solving, with the thought that the conversation might spur us to bridge doctrinal silos not merely for ourselves, but also for the benefit of our students (in and outside the classroom).  Megan Chaney and Victoria Haneman spoke passionately on that issue to lead-off our discussion.  Doctrinal areas covered in the session included trusts & estates, business associations, federal income taxation, criminal law, civil rights, and professional responsibility (and I am sure that I am missing some . . . ).

In our initial set of communications, I asked Mitch what possible angle I could have on the Epstein trust matter based on my work and areas of expertise.  He noted in response that he would like the session to address, e.g., whether veil piercing doctrine from the business entity law sphere might have a role in helping Jeffrey Epstein's judgment creditors--especially victims of his sexual exploitation, trafficking, molestation, and rape (including the sexual exploitation of teenaged victims)--satisfy any damages awarded to them with assets transferred to and held in the trust.  I took the bait, more out of allegiance and curiosity than out of a feeling that I had something valuable to contribute.  The session was extremely rewarding professionally and personally.  I am sharing some musings from it today, most of which I also shared in yesterday's discussion.  They are in the nature of a fledgeling thought experiment and do not reflect deep research.

At its base, the Epstein asset recovery issue presents as a fraudulent conveyance question: can creditors claw back into Jeffrey Epstein's estate the assets he put into trust (presumably to avoid keeping those assets in his name and, after death, in his estate) and, if so, under what circumstances?  In reporting on the trust and the ability of Jeffrey Epstein's creditors to access assets from it, a Forbes article from last year concluded, on balance, that the trust assets may well be reachable by those creditors to satisfy their judgments.  Of course, certain factual and legal matters asserted or assumed in the article's assessment would need to be established in fact (and participants in yesterday's session both agreed and disagreed with the conclusion expressed in the article, based on their individual knowledge of and "take" on the facts).

Aways loving a challenge, I set out to think about the business entity law angle Mitch pitched--focusing in on veil piercing doctrine (as the same is legally recognized under the law of corporations and limited liability companies).  Interestingly, the Forbes article described a trust by contrasting it with these forms of business entity.

It is important to understand what a trust is and isn't. First, what it isn't: A trust has no physical existence: You can't have it over to your house on Saturday afternoon for beer and bar-b-que. Nor does a trust have a separate legal existence either, since it is not considered a "person" under the law that can itself sue or be sued; contrast this with the legal fictions known as corporations and LLC, which are considered "persons" under the law that can sue and be sued in their own names.

Right.  So, there is no legal entity to disregard (although it was noted in the discussion group that a trust may be a taxable entity--a recognized legal person--for federal income tax purposes).  There is, instead, the need to disregard a unique, legally recognized fiduciary relationship built on a contract or contract-like arrangement that involves the transfer, holding, and administration of property.  The lack of legal entity status gives me pause.

Also, of course, veil piercing relates to who is liable for a loss (not whether assets owned of record by a transferee may be recovered, of sorts, and used to satisfy liabilities of the transferor).  Various theories (e.g., alter ego, insufficient separateness, unity of interest/ownership) underlie the equitable application of veil piercing doctrine.  Given the nature of a trust, however, I am hard-pressed to come up with a theory that would explain or justify holding a properly constructed trust or its trustee liable for the grantor's wrongful conduct.  The possibility of disregarding the trust is not, then, logically rooted in notions of direct or vicarious liability operative in business entity law.

All that having been said, there is an interesting, albeit imperfect, analogy to explore between reverse veil piercing and fraudulent transfer law as the same may relate to the Jeffrey Epstein trust scenario.  In reverse veil piercing, as business lawyers know well, a business entity is held legally responsible for damages created by the wrongful conduct of a shareholder.  As a result, the corporation's assets would be used to satisfy the judgment for that wrongful conduct.  The argument in the Epstein trust situation would be that transfers to a trust should be voidable to cover damages created by the wrongful conduct of the grantor.  Thus, assets of the trust would be used to satisfy the judgment for that wrongful conduct.  The analogy is arguably grounded in common policy underpinnings--the desirability that a plaintiff's recovery of damages for bona fide cognizable claims not be avoided by the establishment of legal structures purposefully designed to defraud or promote fundamental injustice.  Kenya Smith put a point on the analogy in our session yesterday by asking us to consider whether reverse veil piercing would be appropriate if Jeffrey Epstein had transferred his assets to a corporation instead of a trust . . . .

Indeed, it appears that the reverse veil piercing argument has been used in at least a few cases.  A 2020 Sixth Circuit opinion--Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925 (6th Cir. 2020)--addresses reverse veil piercing in relation to a trust governed by Tennessee law.  The opinion of the court notes that, under Tennessee law, reverse veil piercing has only been applied in the parent-subsidiary context.  Both the opinion of the court and the concurrence offer much to consider.  (I have more to say about the concurrence in the next paragraph.)  Moreover, a Utah law firm has published a helpful post that offers a brief treatment of three cases--a federal tex case in which the argument was successful and two non-tax cases in which the argument was unsuccessful.  (The post also includes information about two possible alternative arguments applicable to asset protection trusts: that the funding of all or part of the trust was a fraudulent transfer and, in the case of a self-settled trust, that the trust should not be recognized under applicable law.)

A problem with the reverse veil piercing analogy, to the extent it may be considered for use in a legal action, is the possible application of the doctrine of independent legal significance (a/k/a the doctrine of equal dignity).  Under that doctrine, as it might be applied in this context, if a person chooses to use a corporation to accomplish a goal, then the law applicable to corporations should govern; and if a person chooses to use a trust to accomplish a goal (even if it be the same goal that could be accomplished with a corporation), then the law applicable to trusts should govern.  A court may use that doctrine to reject the application of corporate law to the trust.  In fact, the concurring opinion in the Church Joint Venture case cited above is grounded in independent legal significance and notes some of the points regarding the legal entity status (or a lack thereof) of trusts raised above.  The concurrence begins: "I join the court’s opinion in full. I write to add a word (or two) about my discomfort with incorporating 'veil piercing' and 'alter ego' theories into trust law. Both concepts originate in corporate law, and both concepts should stay there." Church Joint Venture, L.P. v. Blasingame, 947 F.3d 925, 935 (6th Cir. 2020).  I found the concurrence a great read overall.  Another quotable from that opinion: "How could one 'pierce the veil' of a trust? It doesn’t have a veil, much less any form to pierce into."  Id.

Notwithstanding the foregoing, it may be possible to use veil piercing not as a primary argument but, rather, as support for another legal theory of recovery (likely, fraudulent conveyance).  It seems that legal actions may often raise both fraudulent transfer and veil piercing arguments, in the alternative, in any case.  Regardless, it has been both instructive and satisfying to identify, think through, and discuss these issues with colleagues from other disciplines and other law schools.  I look forward to future conversations of this kind with these and other colleagues in legal education, and I also look forward to engaging students with and in these discussions.

 

August 3, 2020 in Corporations, Joan Heminway, Teaching | Permalink | Comments (0)