Monday, June 13, 2022

Change Leadership

In a post last month, I mentioned my recently published article on teaching change leadership in law schools.  That article, Change Leadership and the Law School Curriculum, 62 Santa Clara L. Rev. 43 (2022), offers some ideas about preparing our students for leading change.  The SSRN abstract follows.

Lawyers, as inherent and frequent leaders in professional, community, and personal environments, have a greater-than-average need for proficiency in change leadership. In these many settings, lawyers are charged with promoting, making, and addressing change. For example, one commentator observes that, “as stewards of the family justice system and leaders of change, family law attorneys have an ongoing responsibility to foster continuous system improvement.” Change is part of the fabric of lawyering, writ large. Change leadership, whether voluntarily assumed or involuntarily shouldered, is inherent in the lawyering task. Yet, change leadership—well known as a focus for attention in management settings and related academic literature—is rarely called out for individual or focused attention in the traditional law school curriculum. This article presents a brief argument for the intentional and instrumental teaching of change leadership to law students.

Many of our students already have been in or are assuming leadership roles.  Others are leading from where they stand.  And, as the abstract indicates, all will likely find themselves leading--in and outside the profession--at a later date.

Moreover, the world has been in, and continues to be in, a state of seemingly constant evolution.  Some of that evolution can be catalyzed or channeled by lawyers who have a compelling vision for the future.  Legal training can help foster that kind of vision.

As we all know, however, merely having a good idea is not enough.  The process of change-making can be critical to its success.  Change leadership can play an important role, and we can expose students to successful change leadership models while they are in law school.  That's what this article advocates.  I am interested in your reactions . . . .

June 13, 2022 in Joan Heminway, Teaching | Permalink | Comments (2)

Saturday, June 4, 2022

Business Ethics in a Pandemic

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Recently, I published a short piece for the Nashville Institute for Faith and Work (NIFW) about Business Ethics in a Pandemic.

As mentioned there, I have found teaching Business Ethics courses extremely challenging, but important. While law can be unclear, the boundaries of business ethics are even more vague. 

Perhaps it is simply because one of my younger brothers is an English professor, but I have been increasingly drawn to using literature in the teaching of business ethics as a way to grapple with the lack of clarity.

So far, I have used the fiction and poetry of Derrick Bell, Wendell Berry, Octavia Butler, Anton Chekov, Ross Gay, Ursula Le Guin, Cormac McCarthy, Mary Oliver, Ranier Maria Rilke, May Sarton, George Saunders, and Leo Tolstoy. Admittedly, this is a bit of an odd mix, but I think each of these writers have something important to say, even if I do not use each of them every semester. 

I remain open to other suggestions, and I plan to rotate in other authors as I continue to teach our business ethics course. (I also hope to write a few longer pedagogy articles in the law & literature and ethics & literature space). 

(Photo of Bass Lake in Blowing Rock, NC, which is perhaps my favorite place to read).

June 4, 2022 in Books, Ethics, Haskell Murray, Teaching | Permalink | Comments (1)

Tuesday, May 31, 2022

New Scholarly Journal Focused on Law Pedagogy!

This exciting news came to us earlier today from Emily Grant, Professor of Law and Co-Director, of the Institute for Law Teaching and Learning at Washburn University School of Law:

The Institute for Law Teaching and Learning is thrilled to be launching a new scholarly journal. The Journal of Law Teaching and Learning will publish scholarly articles about pedagogy and will provide authors with rigorous peer review. We hope to publish our first issue in Fall 2023.

If you have a scholarly article that might fit the needs of The Journal of Law Teaching and Learning, please consider submitting it directly to us via email at mcolatrella@pacific.edu or through the Scholastica platform.

Thanks for bringing this to our attention, Emily!  I know there is lots of good business law teaching going on out there that all can learn from.  I hope that some of you will consider sharing your teaching wisdom.

May 31, 2022 in Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)

Monday, May 23, 2022

Teaching Leadership to Transactional Business Lawyers

The edited (and annotated) transcript of my 2021 "Try This" session from the 7th Biennial Conference on the Teaching of Transactional Law and Skills ("Emerging from the Crisis: The Future of Transactional Law and Skills Education," hosted virtually by Emory Law in the spring of 2021) was recently published.  Leadership for the Transactional Business Law Student, 23 Transactions: Tenn. J. Bus. L. 311 (2022), offers background and tips on teaching leadership to transactional business law students.  The substantive part of the SSRN abstract follows.

We do not always acknowledge this in legal education, but our students are learning to be leaders, because lawyers are leaders. That is as true of transactional business lawyers as it is of litigators, lawyers who hold political or regulatory appointments, lawyers engaged with compliance, and lawyers in general advisory practices. Yet, most law schools do little, if anything, to teach law students about leadership, or allow them to explore the contours and practices of lawyer leadership.

This edited transcript explains the importance of teaching leadership skills, traits, and processes to transactional business law students and offers insights on how instructors in a law school setting might engage in that kind of teaching as part of what they do. . . .

Edited transcripts of interactive teaching sessions at conferences are imperfect communication tools.  But I hope the publication of my teaching forum offers some food for thought for fellow business law profs (and maybe others).  I continue to explore teaching law leadership in specific and general settings.  Along those lines, I will have more to say about teaching leadership in law schools in a future post featuring my recently published piece in the Santa Clara Law Review on teaching change leadership, which I mentioned in an earlier post on Teaching Leadership in/and Law.

May 23, 2022 in Joan Heminway, Law School, Lawyering, Teaching | Permalink | Comments (2)

Friday, May 20, 2022

What Do FIFA, Nike, and PornHub Have In Common?

It's a lovely Friday night for grading papers for my Business and Human Rights course where we focused on ESG, the Sustainable Development Goals (SDGs), and the UN Guiding Principles on Business and Human Rights. My students met with in-house counsel, academics, and a consultant to institutional investors; held mock board meetings; heard directly from people who influenced the official drafts of EU's mandatory human rights and environmental due diligence directive  and the ABA's Model Contract Clauses for Human Rights; and conducted simulations (including acting as former Congolese rebels and staffers for Mitch McConnell during a conflict minerals exercise). Although I don't expect them all to specialize in this area of the law, I'm thrilled that they took the course so seriously, especially now with the Biden Administration rewriting its National Action Plan on Responsible Business Conduct with public comments due at the end of this month.

The papers at the top of my stack right now:

  1. Apple: The Latest Iphone's Camera Fails to Zoom Into the Company's Labor Exploitation
  2. TikTok Knows More About Your Child Than You Do: TikTok’s Violations of Children’s Human Right to Privacy in their Data and Personal Information
  3. Redraft of the Nestle v. Doe Supreme Court opinion
  4. Pornhub or Torthub? When “Commitment to Trust and Safety” Equals Safeguarding of Human Rights: A Case Study of Pornhub Through The Lens of Felites v. MindGeek 
  5. Principle Violations and Normative Breaches: the Dakota Access Pipeline - Human rights implications beyond the land and beyond the State
  6. FIFA’s Human Rights Commitments and Controversies: The Ugly Side of the Beautiful Game
  7. The Duty to Respect: An Analysis of Business, Climate Change, and Human Rights
  8. Just Wash It: How Nike uses woke-washing to cover up its workplace abuses
  9. Colombia’s armed conflict, business, and human rights
  10. Artificial Intelligence & Human Rights Implications: The Project Maven in the ‘Business of war.’
  11. A Human Rights Approach to “With Great Power Comes Great Responsibility”: Corporate Accountability and Regulation
  12. Don’t Talk to Strangers” and Other Antiquated Childhood Rules Because The Proverbial Stranger Now Lives in Your Phone
  13. Case studies on SnapChat, Nestle Bottling Company, Lush Cosmetics, YouTube Kidfluencers, and others 

Business and human rights touches more areas than most people expect including fast fashion, megasporting events, due diligence disclosures,  climate change and just transitions, AI and surveillance, infrastructure and project finance, the use of slave labor in supply chains, and socially responsible investing. If you're interested in learning more, check out the Business and Human Rights Resources Center, which tracks 10,000 companies around the world. 

May 20, 2022 in Compliance, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Human Rights, International Business, International Law, Marcia Narine Weldon, Securities Regulation, Teaching | Permalink | Comments (0)

Wednesday, May 11, 2022

Strengthening or Destroying

As I have heard many other educators state, this was the toughest semester in my dozen years as a teacher. In my case, it was a mix of difficulties – teaching an overload, representing my colleagues in a heated faculty senate term, and balancing family responsibilities.

Among the most difficult parts was working with students who were struggling more than I have ever seen. To be clear, I was quite proud of my students this semester. Even with a Zoom option, most students showed up in person, engaged with the material, and worked hard. But several students communicated true hardships, and all students seemed to drag more than usual. Typically, I am a stickler for deadlines, but I pushed deadlines back in every class this semester, and I graded with more grace.

It has been a while since Colleen or I had a running post, but today’s track workout felt a bit like this semester. My plan for this morning was 1 mile at tempo pace followed by 8x400m at goal mile race pace. I haven’t been getting great sleep this week so the run started sluggishly. The warm-up and the tempo mile went fine, but I could tell they required more effort than normal. Starting the 400s, I refocused mentally, dug deeper, and came through faster than expected on the first one. On the second 400, however, my legs felt like logs, and I stepped off the track halfway through that rep. I knew 8x400 simply was not going to happen at the planned pace, and I reconfigured the workout on the fly to 800@3K pace, 2x200@800m race pace, 800@3K pace, 2x200@800m race pace. This maintained roughly the same amount of hard running, but in a format that I could actually complete.

Younger versions of myself would have seen this “busted workout” as weakness. And the line between strength building and destruction is a fine one. At times, you want to “go to the well” and “see God” in a workout. Training yourself to be mentally tough and push through pain can be a valuable part of the process. You do have to tear down somewhat in order to build. But an effort that is “too difficult” will hamper progress either through injury or through extreme fatigue that ruins other planned runs. Disgraced Nike Coach Alberto Salazar seemed to miscalculate in his training of Mary Cain and squandered her immense talent with too much intensity.

Obviously, both as a teacher and as an athlete, finding the right balance is difficult. Frankly, I may have been a bit too easy on my students and myself this past semester, but it did seem like we were moving into territory where holding strictly to plan would have been more destructive than stengthening.     

May 11, 2022 in Haskell Murray, Psychology, Sports, Teaching | Permalink | Comments (1)

Monday, March 14, 2022

Business Divorce in Tennessee: Oppression, Fair Value, Attorneys' Fees, Pre-Judgment Interest, and More!

A recent opinion of the Court of Appeals of Tennessee at Nashville, Buckley v. Carlock, is chock full of great issues from the standard Business Associations course.  Specifically, the case involves allegations of controlling shareholder oppression under Tenn. Code Ann. § 48-24-301.  The plaintiff requested, and was grated, a buy-out of his shares in lieu of dissolution.

As noted in the opinion, the plaintiff raises a variety of issues on appeal, arguing:

that the trial court's valuation of his interest in TLC was "erroneous as a matter of law, or at least contrary to the weight of the evidence." He also claims that the court abused its discretion in denying him prejudgment interest. And he contends that he was entitled to attorney's fees as the prevailing party for the whole case. Lastly, he argues that the trial court erred in dismissing his claim for unjust enrichment as moot.

The Court of Appeals affirms the trial court opinion after oral argument (a note on that below).  In the process, the court validates a dissenters' rights ("fair value") approach to calculating the value of the plaintiff's shares.  It also confirms aspects of the valuation calculation.

All of these "real life" business divorce issues are illustrative of the way the statutes we teach get used in practice.  The related issues (e.g. as to attorneys' fees, the admission of witness testimony, pre-judgment interest, and unjust enrichment) all add color to the standard Business Associations fare.  This case may make for interesting teaching material.

To that point, in writing up this post, I found some buried treasure relevant to teaching.  The oral arguments for the case were recorded on Zoom and are publicly available!  The two legal counsel arguing the case are professional and knowledgeable.  All of this may help to illustrate for students the relevance of the activities they engage in during law school.

March 14, 2022 in Business Associations, Corporations, Joan Heminway, Teaching | Permalink | Comments (2)

Monday, March 7, 2022

SEALS 2022 - Prospective Law Teachers Workshop

Reposting this notice and FAQ distributed last week by the Southeastern Association of Law Schools (SEALS) for those interested in/planning on joining the law academy.

*     *     *

Each year, SEALS hosts a Prospective Law Teachers Workshop (PLTW), which provides intensive opportunities for VAPs, fellows, and practitioners to network and participate in mock interviews and mock job talks—prior to the actual teaching market. The Workshop also includes a luncheon (separate ticket purchase is required) and 1-on-1 sessions for candidates to receive faculty feedback on their CVs and FAR forms. This year’s Prospective Law Teachers Workshop will be held at The Sandestin Golf and Beach Resort, Florida on Thursday, July 28 through Saturday, July 30, 2022, although the full SEALS conference runs from Wednesday, July 27 through Wednesday, August 3. If you are interested in participating specifically in the Prospective Law Teachers Workshop, please send your CV, and a brief statement explaining your interest, to Professor Leah Chan Grinvald lgrinvald@suffolk.edu. Please also confirm that you are planning on entering the teaching market in August 2022. Applications are due by March 21, 2022, with decisions made no later than March 30, as registration for SEALS opens on April 1. Past PLTW participants have secured tenure-track appointments at an impressive array of law schools.

Independently from the PLTW, SEALS also offers a workshop that is broader programming for anyone considering academia—even if one is earlier in the process. Anyone may simply attend the Aspiring Law Teachers Workshop by attending SEALS. The programming includes a demonstration of faculty-candidate interviews and sessions on designing your teaching package, navigating the market as a nontraditional candidate, mapping academic opportunities, what’s in a job talk, crafting scholarship goals, the art of self-promotion, as well as a luncheon (separate ticket purchase required when registering for SEALS). The Aspiring Workshop occurs between Wednesday, July 27–Sunday, July 31.

The goal of these two workshops is, in tandem, to provide robust opportunities for those who hope to one day enter legal academia.

Frequently Asked Questions:

They both sound great. What exactly is the difference?

The Prospective Workshop is designed for those who are going on the market this fall (and will be submitting their FAR form or applying to law teaching positions), in 2022, and desiring a chance to moot job talks and interviews in advance of that time. The Aspiring Workshop is designed for anyone considering academia, including those who may not yet be ready to moot a job talk in the summer. Participation in the Prospective Workshop is by acceptance-only while the Aspiring Workshop is open to everyone.

Can I attend both workshops?

Possibly. Some of the times may conflict, but the Aspiring Law Teachers Workshop will be generally open to anyone wishing to attend. Attendance in the Prospective Workshop is in contrast only by acceptance through our competitive selection process, although the PLTW session on Navigating the Market is open to all SEALS attendees.

Is this the new faculty recruitment initiative that I heard SEALS has put together?

No, this is not the new hiring initiative that SEALS is conducting. That process is entirely separate. Information about SEALS’ new faculty recruitment initiative can be found at the following link: https://www.sealslawschools.org/recruitment/applicants/.

March 7, 2022 in Conferences, Joan Heminway, Jobs, Teaching | Permalink | Comments (1)

Monday, February 28, 2022

Reflections on Music, Business, and Law Teaching in the Wake of the Invasion of Ukraine

Yesterday, I was privileged to attend a wonderful Knoxville Symphony Orchestra performance as part of its Chamber Classics Series.  The featured piece was the Bach Concerto for Two Violins--an amazing piece of work.  It was preceded in the program by a wonderfully catchy Stravinski Octet.  The second half of the program focused solely on a Shostakovich piece (arranged by Rudolph Barshai): Chamber Symphony, Op. 73a.  I want to focus here for a moment on this last composition.

Dmitri Shostakovich was a Russian (Soviet) composer.  He died back in 1975.  As my husband and I looked at the program in anticipation of the Shostakovich work, we could not help but think of the ongoing Russian invasion of Ukraine.  We have watched with horror and sadness the violence, destruction, displacement, and more.  Of course, the program for the concert today was many months in the making; the Knoxville Symphony Orchestra could not have anticipated that a Russian composer's music would be played in these circumstances . . . .

In his introduction to the Shostakovich Chamber Symphony, our conductor, Aram Demirjian, explained that Shostakovich was periodically critical of the Soviet government, despite its patronage of his work.  He explained that the arrangement we were about to hear was derived from a Shostakovich string quartet with Shostakovich's consent.  The original string quartet was composed in 1946 after an earlier symphony composition was censured by the Soviet government.  Demirjian noted that Shostakovich labeled the five movements of the quartet as follows:

  1. Blithe ignorance of the future cataclysm
  2. Rumblings of unrest and anticipation
  3. Forces of war unleashed
  4. In memory of the dead
  5. The eternal question: why? and for what?

As he expressly noted, Shostakovich's five movements reflecting on the progression of war at an earlier time seem eerily appropriate given our circumstances today . . . .

The Shostakovich piece--plus the rollouts of deepening economic sanctions against Russia and its President, concern about cyberattacks, and fears of nuclear warfare--have had me thinking about short-term and long-term impacts on cross-boarder transactions and multinationals.  I have been teaching the regulation of securities offerings in my Securities Regulation course, including offers and sales of securities made by foreign issuers or offshore.  Early news of and speculation about the impact of the Ukraine invasion on investment markets has been published.  See, e.g., here and here.  Corporate finance, writ large, is affected by the invasion and the West's responses to it.  The New York Times reported that "[t]he market volatility generated by the crisis has . . . chilled I.P.O.s and complicated dealmaking."

In that same article, the Times noted effects on business more broadly.  "Multinationals have halted operations in Ukraine and moved employees to safety, with Russia’s assault sending shudders through boardrooms around the world."  Other news outlets have published similar reports.  See, e.g., here, here, and here.

It seems important to be raising issues in our business law classrooms relating to all of this.  In addition to the public offering/corporate finance angle, there are at least two connections to the material in my Securities Regulation course that may be productive to explore.  I will share both briefly here, in case they may be of interest for the teaching done by some of our readers.

The first idea is to focus in on the investor side of the equation, given the investor protection policy underpinnings of the federal securities laws.  A few weeks ago, we spent a class day on investors--who they are in today's markets and how theory and policy may impact and be impacted by those demographics.  The mews media also have been covering the investor side of the corporate finance equation, including retail investing issues.  See, e.g., here.  In my classroom, we can revisit and think through how (if at all) the market impacts of the Ukraine invasion change investor protection--and the concept of the reasonable investor.

The second idea is to work in a discussion of the funding of the Ukrainian war effort when addressing the definition of "underwriter" for purposes of the registration exemption in Section 4(a)(1) of the Securities Act of 1933, as amendedThe New York Times reported that "Ukraine and allied nonprofits are raising money from donors (including in cryptocurrency) to fund resistance forces."  In covering underwriter status, I teach the SEC v. Chinese Consolidated Benevolent Association case.  For those of you who are unfamiliar with the case, it involves efforts among Chinese persons here in the United States to fund China's efforts to resist Japanese aggression in the second Sino-Japanese conflict.  (FYI, this book chapter offers lots of great background information on context that the case does not provide.)  It would seem appropriate to offer hypotheticals relating to funding any long-term Ukrainian resistance through the sale of investment interests that may be securities and to discuss the possible effects of the advent of cryptocurrencies (and blockchains more generally) on securities regulation in financings and other investment contexts.

I am sure some of you have your own ideas about whether and how to work discussions of the current, disquieting news relating to the Ukrainian invasion into your business law classrooms.  Please share thoughts that you may have in the comments to this post.  As the conflict continues, there will no doubt be more to talk about.

February 28, 2022 in Current Affairs, International Business, Joan Heminway, Teaching | Permalink | Comments (2)

Saturday, February 5, 2022

Kindness in Law

In 2013, acclaimed short-story writer George Saunders gave a commencement speech on kindness at Syracuse University. The speech went viral, the transcript landed on The New York Times blog, and the talk later became the basis of a book

The entire speech is well worth listening to, but the gist is Saunders saying: “What I regret most in my life are failures of kindness.”

Oxford English Dictionary defines “kindness” as “the quality of being friendly, generous, and considerate.”

When I think of the profession of law, “kindness,” “friendly,” “generous,” and “considerate” are sadly not among the first words that come to mind. “Analytical,” “bold,” “competitive,” “critical,” and “justice” were the first five words I would use to describe our field. 

As C.S. Lewis reportedly said, “love is something more stern and splendid than mere kindness,” but I am not sure love is ever less than kindness. There may be ways, as negotiation theory teaches us, to “be soft on the person, but hard on the problem.” We can tackle injustice with vigor, but be mindful of the people across the tables from us. 

Pre-pandemic, I put a real premium on “tough love” and preparing students for the rigors of practice. While I still think there is a place for the critical and exacting skills that law training tends to emphasize, I also think we would all do well to increase our focus on kindness.

February 5, 2022 in Books, Business School, Haskell Murray, Law School, Teaching, Wellness | Permalink | Comments (0)

Monday, January 24, 2022

#BusinessLawProfPride

I cannot resist sharing with you today a proud moment that I had last week.  One of the 3L students that I mentor wrote a blog post that our Leading as Lawyers blog published. I could not be more proud.

I had been encouraging this student--a young woman I deeply admire--to write a post for us for a number of months.  She wasn't sure.  But I kept telling her that she had such compelling stories to tell.  Nevertheless, she remained unsure until recently that anything she would write could speak in a powerful enough way about leadership.

More recently, the pieces of her professional development puzzle have started to fall into place.  As a result she could see it--she found her voice; she knew what she had to say.  The result of her labors can be found here.  The title alone is enough to make a business law prof proud: The Unlikely Avenue from Hopeful Environmental Litigator to Inspired Transactional Lawyer.  You can click on the link and read the post in its entirety.  But here is the bottom line:

When I came to law school, I was so scared of “selling out.” I thought that transactional law was the route straight there. It turns out that choosing a path that utilizes my strengths and foregoes my weaknesses was never going to be “selling out.” Choosing transactional law is going to equip me to help animals and people in ways that I had never imagined prior to law school.

Amen.  Thanks, Ashley, for giving me this proud moment that I can share.  I will miss you after you graduate in a few months . . . .

January 24, 2022 in Joan Heminway, Teaching, Weblogs | Permalink | Comments (0)

Friday, January 21, 2022

Sharing About Some Teaching Materials

We just finished our first week of class for the spring semester!  It was a busy several days (as I would imagine the first week of the semester tends to be for all!).  As I returned to teaching mode, I thought of some teaching materials I’d like to share (and somewhat reshare) with BLPB readers.

First, several years ago, I blogged about Professor Richard Shell’s Springboard: Launching Your Personal Search for Success (here and here).  I mentioned his Six Lives Exercise, but I didn’t explain much about it.  Not only do I think it’s a great personal reflection exercise, but it generally generates a significant amount of classroom discussion and interest.   As I’ve used it several times now and it tends to generate a lot of student discussion, I thought I’d reshare about it!  Although I recommend buying the book, it’s not necessary to do the exercise, which is available here.  Shell provides vignettes of six lives: a teacher, wealthy investor, tennis pro, stone mason, and non-profit executive.  After reading their stories, students (or the reader) is invited to rank the lives in the order of “most successful” to “least successful” from their perspective.  Shell argues that success has an inner (internal happiness and satisfaction) and an outer dimension (social achievement, fame etc.).  The class (or reader) can then reflect upon how success is being defined in each of these lives, how they personally define success, the extent to which their ranking reflects their definition, and small steps to minimize any misalignment.

Second, if you teach contracts and you don’t know about Leonard v Pepsico (I didn’t until Professor Kimberly Houser told me about it.  Thanks, Kim!), you should!  It’s a really fun and students love it!  Professor Jeremy Telman has blogged about it (here) with links to videos of the Pepsi commercial at issue.  In a nutshell, Pepsi made a commercial about various items that could be purchased with different amounts of Pepsi Points.  At the end of the commercial, a Harrier Fighter Jet appeared with the words “7,000,000 Pepsi Points.”  Needless to say, Pepsi wasn’t offering fighter jets to customers in exchange for their Pepsi Points.  However, one customer did amass all of these points and then sought to claim a jet!

January 21, 2022 in Colleen Baker, Teaching | Permalink | Comments (0)

Monday, January 17, 2022

Martin Luther King Jr. and the Beginning of a New Semester

I begin teaching again on Wednesday.  The past few weeks have been occupied with course preparation as well as catching up on editing, writing, and other tasks abandoned during a month+ focused on the grading period, attentiveness to  a downturn in my dad's health, Christmas, a nasty cold, and intensive physical therapy.  As I have focused on the spring semester, I continue to be concerned about helping to teach my students critical and intensive thinking, in and outside legal reasoning.  On this day honoring the life and many legacies of Dr. Martin Luther King Jr., I am inspired in my work by this passage from his writing--specifically, Chapter 1 of Strength to Love (1963; Pocket Book ed. 1964):

 . . . The tough mind is sharp and penetrating, breaking through the crust of legends and myths and sifting the true from the false. The tough-minded individual is astute and discerning. He has a strong austere quality that makes for firmness of purpose and solidness of commitment.

Who doubts that this toughness is one of man's greatest needs? Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.

The last three sentences of this quote are especially meaningful to me.  The world is full of "easy answers and half-baked solutions."  I laugh when a state or  federal legislator sends me survey asking me, e.g., whether I support the taxation of X (as one once did).  How can I answer that question (except in a knee jerk or heuristic-driven process) if I do not know other things first (including whether something else may be taxed instead or whether services may be cut)?  And I am pained when students rely on commercial case briefs and caselaw summaries rather than personally digesting and dissecting the text of even a case excerpt in a casebook.  Suffice it to say, it is difficult to have an in-depth or fully engaged conversation with a student who has not read and thought through the key elements of a particular judicial opinion.

Dr. King may be right that there are relatively few folks "who willingly engage in hard, solid thinking."  But my hope is that many of those who do are and will continue to be lawyers (who lead in our society both in and outside the profession) and that at least a few of those lawyers will have been my students.  I know other law faculty that feel the same way.

Encouraging law students to engage with the legal education process in a way that is productive to willing engagement with "hard, solid thinking" is certainly not easy when easy-to-read summary resources are widely available.  But an investment in that encouragement is worth the time and energy, in my view.  Lawyers can best fulfill their professional promise and responsibility by thinking in a way that is "sharp and penetrating, breaking through the crust of legends and myths and sifting the true from the false."

So, here's to the new semester.  I start with renewed energy to work with my students to get them what they need to succeed in and beyond law school, including by motivating each of them to develop a "sharp and penetrating" mind--a "tough mind."  Sustaining that type of energy in a pandemic-infused, understaffed world will surely be a challenge. But I am up for it!  I wish all law professors well in their pursuit of effective teaching.

January 17, 2022 in Books, Joan Heminway, Law School, Teaching | Permalink | Comments (0)

Monday, January 3, 2022

Honoring the Memory of Betty White

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.

January 3, 2022 in Joan Heminway, Teaching, Television | Permalink | Comments (0)

Monday, December 27, 2021

Being a Business Law Prof: Transitioning to the New Year

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. 🎉

December 27, 2021 in Joan Heminway, Law School, Teaching | Permalink | Comments (0)

Monday, December 13, 2021

Classifying and Labeling Standard M&A Contract Provisions

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.

Are these provisions acknowledgments?  (The non-reliance provision even uses that word instrumentally!)  Or maybe they are representations, affirmations, or even warranties . . . .

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.

December 13, 2021 in Contracts, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, December 6, 2021

AALS Section on Business Associations - 2022 Annual Meeting & Call for Leadership Nominations

This in from friend-of-the-BLPB Jessica Erickson:

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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 jerickso@richmond.edu by December 13, 2020.

We hope to see you (virtually) at the Annual Meeting!

Best,

Jessica Erickson


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

December 6, 2021 in Conferences, Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)

Monday, November 29, 2021

The U.S. Government as a Controlling Shareholder - A Class Discussion

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!

#whyweteach

November 29, 2021 in Corporate Finance, Joan Heminway, Joshua P. Fershee, Shareholders, Teaching | Permalink | Comments (0)

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.

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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.  

. . .

Regards, Sam

November 23, 2021 in Business Associations, Entrepreneurship, Joan Heminway, Lawyering, Teaching | Permalink | Comments (0)

Friday, September 24, 2021

Ten Ethical Traps for Business Lawyers

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:

  1. 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?
  2. 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?
  3. 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?
  4. 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?
  5. 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?
  6. 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?
  7. What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
  8. 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?
  9. When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
  10. 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)