Before I get started on the meat of this week’s post, I just want to take a brief moment to say I am honored and delighted that, at the Journal of Corporation Law’s invitation, Steve Bainbridge wrote a response to my paper, The Legitimation of Shareholder Primacy.

Steve’s response, which you can find on SSRN here, is not so much as a rebuttal as it is a complement.  (He also has a couple of shorter blog posts, here and here.) I approach the recent controversies in corporate law – and DExit in particular – as arising out of an ongoing need among corporate actors to legitimate the power that corporations wield and the legal system that sustains that power; Steve approaches the matter through an interest group lens.  He characterizes Delaware lawmaking as an exercise in balancing the different interests of the legislature, bar, and judiciary, and analyzes the recent contretemps from that vantagepoint.  As he explains, our different takes are not mutually exclusive, and I think he is exactly right in terms of the delicate balancing act that the different Delaware actors must perform.  If I have anything to add, it’s only this: Steve recognizes that these three actors are all involved in the mutually-beneficial project of enhancing Delaware’s franchise, but also puts their specific interests at odds.  I tend to view the problem as more short-term/long-term; choices that immediately retain incorporations – like hasty legislation – may do longer term reputational damage, and hobble production of the cases Delaware needs to keep its law relevant. It’s not an easy problem to solve.

Moving on –

I am in no way a contracts expert but every now and then I kind of marvel at the contract catastrophes that come out of Delaware, and recently there were three doozys.  With the caveat that, as not-a-contracts-professor, I am not at all familiar with the background caselaw so any commentary of mine is just gut reaction, here we go.

And – whoops this got long, under the cut it goes.

Continue Reading Contract Horror Stories

Mitchell Hamline School of Law-a leader in pedagogical innovation dedicated to expanding access to high-quality legal education-is seeking applications for tenured or tenure-track faculty positions beginning July 1, 2027, in the following areas:

  1. Business and Commercial Law
  2. Intellectual Property Law
  3. Lawyering Skills and Experiential Education
  4. NALS Institute and Native American Law

Our law school is in a historic area of St. Paul, on the Indigenous homelands of the Dakota Oyate. The Twin Cities are nationally recognized for arts and entertainment, outdoor recreation, a vibrant nonprofit sector, and civic engagement.

Applicants should submit: (1) a CV or resume; (2) a two- to three-page cover letter identifying the position or positions of interest and explaining their qualifications and potential contributions to academic excellence and inclusivity; and (3) a list of publications and other substantial written work, with a statement of scholarly interests and agenda.

Submit applications via the links above or through mitchellhamline.edu/employment.

Applications will be reviewed on a rolling basis until the positions are filled. For consideration for the initial interviews, apply by Friday, August 21, 2026.

What’s Working in Your Classroom? Experiential Exercises in Business Law

The AALS Section on Transactional Law & Skills is pleased to announce a session at the 2027 AALS Annual Meeting in New York City.

The Section invites submissions for a panel highlighting experiential exercises across the business law curriculum. We welcome exercises used in courses including Business Associations, Contracts, Securities Regulation, Tax, Intellectual Property, Commercial Law, Transactional Drafting, and other business law courses. Examples might include contract drafting workshops, transactional research assignments, mock negotiations, client counseling exercises, compliance exercises, deal simulations, or other experiential activities that develop students’ transactional lawyering and professional skills.

Selected presenters will describe their exercise, discuss how they facilitate and, where applicable, assess or grade it, and give attendees a sense of how it plays out in the classroom.

We anticipate selecting multiple presenters for this session, with the final number depending on the session length and the submissions received. A formal written paper is not required; a clear description of the exercise and how it is used is sufficient for submission.

To submit, please send a short description of your exercise to Professor David Lourie (dlourie@iu.edu) on or before Friday, September 11, 2026. Please include your name and contact information and include “AALS – Transactional Pedagogy” in the subject line.

Submissions will be reviewed and selected by the Executive Committee of the AALS Section on Transactional Law & Skills. Presenters are responsible for their own registration, hotel, and travel expenses.

Anticipated appointment date:  August 1, 2027.

Teaching responsibilities are based on Baylor Law’s curricular needs and applicant’s experience; however, the primary teaching responsibility is expected to include upper-level courses in trusts and estates, wealth transfers, estate planning, marital property, and estate administration.   Research responsibilities include developing and implementing a research agenda in the individual’s area of expertise.

The Faculty Appointments Committee also encourages applicants whose expertise lies in the transactional, commercial, or business areas.

For more information, please visit the Baylor Law website:  www.baylor.edu/law/facultystaff/index.php?id=980341. 

Qualifications 

Candidates must possess an earned Juris Doctor and evidence of impressive academic performance in law school, such as a noteworthy ranking or GPA, earned law review membership and involvement, or other law school honors, (e.g., Order of the Coif membership). Candidates will be asked to provide a letter of interest, curriculum vitae, transcripts, and a list of three references in the application process. Candidates are encouraged to describe their interest in living and working in Central Texas.  Experience as a practicing attorney in any field is preferred.  Salary is commensurate with experience and qualifications.

Application Instructions 

Review of application will begin August 10, 2026 and will continue until the position is filled.  Nothing received after October 31, 2026 can be considered.  Please follow this link to apply:   apply.interfolio.com/189876

THE UNIVERSITY OF ILLINOIS COLLEGE OF LAW invites applications for positions on the tenured/tenure-track faculty to begin in August 2027. The College welcomes applications from scholars in all subject areas of the law but has particular interests in hiring in the following areas: bankruptcy and commercial law, corporate and business law, contracts, civil procedure, and property law.

The University of Illinois is home to a distinguished and collegial national law school, founded in 1897 and situated within a premier research university that affords unrivaled opportunities for cutting-edge legal scholarship, innovative interdisciplinary work, and professional involvement with the dynamic Chicago legal community. Champaign-Urbana is an inclusive college town with an exceptional quality of life. 

Minimum Qualifications

Applicants must have a J.D. or Ph.D. or their equivalent, a strong academic record, and a record of scholarly distinction or great scholarly promise.  

Appointment Information

These are full-time tenure-track positions appointed on a 9/12 basis. The anticipated start date is August 17, 2027. Salary is commensurate with experience but a minimum of $172,500. The University of Illinois offers an outstanding and comprehensive benefit package.

Application Procedures & Deadline Information

Applications will be considered on a rolling basis, but applications submitted after October 18, 2026 may not receive full consideration. Applications must be submitted online (here) or they will not be considered. Please upload a curriculum vitae, research agenda, sample publications, and contact information of four references (name, telephone number and email address). For further information about these positions, please email Devin Scheidemantel at wds@illinois.edu.

My most recent article on blockchain fraud, The Inadequacy of Equitable Remedies for Blockchain Fraud, 95 Miss. L.J. 1144 (2026), was recently released by the Mississippi Law Journal. Written for the 2025 Remedies Forum hosted in Budapest, Hungary, this article follows on an earlier work I featured here on the BLPB in June, co-authored with a former student. The SSRN abstract is set forth below.

To preserve blockchain’s actual and potential social, financial, and economic value, policymakers, the practicing bar, and blockchain consumers must familiarize themselves with the blockchain fraud environment and ensure that conduct regulation and enforcement efforts and outcomes properly balance innovation and regulation. Appropriately designed fraud enforcement efforts, including the resulting remedies, are a component piece of the puzzle. This Article offers a window into blockchain fraud and describes and evaluates both the equitable remedies that are assessed against those who commit fraud on blockchains and related proposals for reform. It principally focuses on these issues through a U.S. lens.

More must be done to improve the environment for blockchain consumers through legal, industry, or social channels. The principal challenge in making these improvements will be the very nature of blockchain technology as a self-regulating transactional environment. Sustainable solutions will involve significant work in and among representatives of government (ultimately, not only federal and local governments, but also foreign governments), the blockchain industry, end-users of blockchain technologies, lawyers working with all the foregoing, and potentially others (including researchers and industry beneficiaries, like the nonprofit community). If the benefits of blockchain technology are to be preserved, this work must be undertaken in the near term.

My interest in blockchains originally arose out of my research in securities regulation. However, the more I researched, the more I came to see blockchain technology as something business lawyers generally need to understand better from a legal standpoint. I am indebted in this work to that of so many others, but most significantly, the work of friend-of-the-BLPB Carla Reyes. Our conversations over the years have been enriching (althoguh all errors in my work are my own!), and I cannot go through a presentation or publication without citing her foundational publications.

There is more to come. I have been looking into the legal structures used to organize investment DAOs (decentralized autonomous organizations). I expect that project will take shape more in the coming months as I gain accesss to more data. I wish I had more time to spend on this project right now. But mixing my research and writing with my administrative and teaching duties is challenging at the moment.

At the Southeastern Association of Law Schools conference two weeks ago, I participated in two dicussion groups on white collar crime. I commented on my work in this space both by way of comparing and contrtasting blockchain fraud with street crime and to provoke thinking about how technology, including blockchain fraud and Delaware’s recently announced artificial intelligence companies, have the capacity to generate fraud and other unlawful behaviors that may be hard to detect and punish. I will look forward to sharing more with you on that in the future.

Villanova University Charles Widger School of law seeks an outstanding educator-scholar to join its faculty beginning in the 2027-2028 academic year. We welcome applications from all candidates with a particular interest in candidates who teach and write in business law (e.g. business organizations, securities regulation, or corporate finance) and/or contracts/commercial law. For additional information see: jobs.villanova.edu/postings/35407

Interested applicants should send a CV, cover letter, and other supporting documents to: appointments@law.villanova.edu. All applicants must also apply through the official Villanova University posting.

POSITION NOTICE

PROPERTY AND REAL ESTATE
ASSISTANT OR ASSOCIATE LAW PROFESSOR

THE UNIVERSITY OF TENNESSEE
WINSTON COLLEGE OF LAW

THE UNIVERSITY OF TENNESSEE WINSTON COLLEGE OF LAW invites applications from both entry-level and lateral candidates at the assistant or associate professor level for one full-time, tenure-track faculty position to begin at the start of the 2027-28 academic year.

The College is interested in candidates with experience and scholarly aptitude in real estate and other dimensions of property law. Ideally, the successful candidate will teach property along with one or more courses in the real estate law area, including real estate finance, land use, or real estate transactions. Secondary interests include bankruptcy, secured transactions, intellectual property, business law, and related courses. Duties include maintaining a full (typically three-course) annual teaching load, engaging in and publishing scholarly research, and participating in law school and university governance and service.

The University of Tennessee

The University of Tennessee, Knoxville, the flagship campus of The University of Tennessee System, is an R1, land-grant university located in Knoxville, Tennessee, the third largest city in the state. The City of Knoxville is a hidden gem with a beautiful and walkable downtown, varied nightlife, active neighborhoods, and eclectic shopping and restaurants. The university campus is located within easy driving distance to Asheville, Nashville, Atlanta, and the Great Smoky Mountains.

Winston College of Law

The University of Tennessee Winston College of Law prides itself in providing an exceptional legal education that prepares future lawyers for the practice of law. Most members of our faculty have significant law practice experience in the subject matters they teach and many remain engaged with the local, state, or national bar. We value a faculty of individuals from different backgrounds with a wide range of perspectives and experiences, and we foster an environment that encourages collaboration and innovation. Our collegial faculty is committed to mentoring and supporting new faculty to achieve success in their academic careers.

Qualifications

Candidates must hold a J.D. or equivalent law degree by the time of appointment and have a strong commitment to excellence in teaching, scholarship, and service. An impressive academic background and significant professional experience are desirable. The successful applicant will be appointed to a rank commensurate with their research, teaching, and service record. In particular, candidates for Assistant Professor should have a demonstrated potential to succeed as a junior faculty member at a state flagship campus such as The University of Tennessee, Knoxville. Candidates for Associate Professor should have a demonstrated record of thoughtful and effective teaching, continued engagement in scholarship, and engagement in their professional community.

Application Instructions

Applications must be submitted through Interfolio (apply.interfolio.com/190438).Applicants should submit a letter of interest, a CV, and the names and contact information for three professional references. Review of applications will begin immediately and continue until the position is filled. To receive full consideration, applications from entry-level candidates not participating in the AALS Faculty Appointments Register process (or those who are not in the first distribution) should be submitted by August 25, 2026. Lateral candidate applications should be submitted by September 1, 2026. For questions, please contact Professor Michelle Kwon, Chair of the Faculty Appointments Committee, at mkwon2@utk.edu.

Non-Discrimination Statement

All qualified applicants will receive equal consideration for employment and admission without regard to race, color, national origin, religion, sex, pregnancy, marital status, sexual orientation, gender identity, age, physical or mental disability, genetic information, veteran status, and parental status, or any other characteristic protected by federal or state law. In accordance with the requirements of Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Age Discrimination Act of 1975, the University of Tennessee affirmatively states that it does not discriminate on the basis of race, sex, or disability in its education programs and activities, and this policy extends to employment by the university.

Requests for accommodation of a disability should be directed to the ADA Coordinator at the Office of Equal Opportunity and Accessibility, 1840 Melrose Avenue, Knoxville, TN 37996-3560, by email to eoa@utk.edu, or by phone at 865-974-2498. Inquiries and charges of violation of Title VI (race, color, and national origin), Title IX (sex), Section 504 (disability), the ADA (disability), the Age Discrimination in Employment Act (age), sexual orientation, or veteran status should be directed to the Office of Investigation and Resolution, 216 Business Incubator Building, 2450 E J. Chapman Drive, Knoxville, TN 37996-3560, by email to investigations@utk.edu, or by phone at 865-974-0717

As most readers are aware, in 1995, Congress passed the Private Securities Litigation Reform Act (PSLRA), which, among other things, sought to eliminate a perceived “race to the courthouse” whereby plaintiffs’ attorneys rushed to file complaints the moment a company’s stock price dropped, in hopes that the first filer would take control of a class action.  Now, if multiple plaintiffs and counsel seek to control a securities class action, the court makes a determination of the “most adequate” plaintiff, which presumably eliminates incentives to file early (although now that I think about it, I would have thought “adequate” is not a word that can be qualified; it’s like “perfect circle,” it either is or it isn’t. But I digress).

All that’s fine; but, just to get this process started, plaintiffs (and their counsel) still have to file complaints.  Can’t have a lead plaintiff determination until there’s, you know, an actual case on the docket. And because the mere filing of a complaint doesn’t guarantee appointment as lead – with the fees that follow – plaintiffs (and their counsel), have little incentive to put a lot of effort into those initial complaints, which are more like placeholders until the cases are consolidated and an actual lead is appointed by the court.  At that time, the appointed lead plaintiff – and its counsel – will take control of the action by filing a new, well researched, consolidated complaint, and matters proceed from there.  Defendants don’t have to respond to the initial complaints and they usually don’t, since those will be replaced by the operative complaint once there’s a lead in place.

Anyway, a while back, I posted about a situation where a court actually sanctioned a law firm for filing a bare bones initial complaint, on the grounds that the complaint was so sparse, the firm could not in good faith have believed it to satisfy Rule 11 obligations. 

Which I thought was, you know, unfair – yes, the complaint was inadequate, but the initial ones always are; the system pretty much encourages it.

Well, now we have a sort of analogous situation, though it worked out rather better for the law firm.

After Silicon Valley Bank (SVB) collapsed, several investor-plaintiffs and their counsel filed initial complaints.  One of these, filed by Hialeah Employees’ Retirement System, Asbestos Workers Philadelphia Welfare and Pension Fund, and Heat & Frost Insulators Local 12 Funds, repped by Bernstein Litowitz (BLBG), alleged Section 11 claims against officers and directors of SVB and SVB’s underwriters, and Section 10(b) claims against officers and directors of SVB, and SVB’s auditor, KPMG.

Eventually, the cases were consolidated, and two lead plaintiffs were appointed: Norges Bank and Sjunde AP-Fonden. The appointed lead counsel was BLBG and Kessler Topaz.

BLBG and Kessler filed a new consolidated complaint – much more thoroughly researched.  This new consolidated complaint also had both Section 11 and Section 10(b) claims, but lead plaintiff Sjunde AP-Fonden was not listed as a plaintiff for the Section 11 claims; instead, lead plaintiff Norges Bank was listed as a Section 11 plaintiff, along with “additional plaintiffs” Asbestos Workers and Heat & Frost Insulators Local, i.e., two of the funds that had appeared on BLBG’s earlier complaint (I assume because Sjunde AP-Fonden did not have Section 11 standing).

This new consolidated complaint no longer raised Section 10(b) claims against KPMG; instead, it only raised Section 11 claims against KPMG.

After initial motion practice, the court sustained the Section 11 claims against KPMG, and the case proceeded to discovery.

Based on materials uncovered in discovery, BLBG and these four named plaintiffs – the two leads, and the two additional plaintiffs – moved to amend the complaint to add Section 10(b) claims against KPMG, on the ground that they now had evidence that KPMG had acted intentionally or recklessly in signing off on SVB’s financials.

KPMG opposed the amendment with two procedural arguments. First, KPMG argued that the amendment was time barred.  Why?  Because BLBG, repping Asbestos Workers and Heat & Frost Insulators Local, had previously filed a Section 10(b) claim against KPMG more than two years earlier.  BLBG must have had a good faith basis for the complaint, which functioned as a concession that BLBG and the plaintiffs it represented were on notice of their 10(b) claims by that date – and if there was no such good faith, then BLBG would have violated its Rule 11 obligations.

Second, KPMG argued that even if the Section 10(b) claim was not time barred, it was at least waived, because it had been alleged in an earlier complaint and then dropped from the consolidated complaint.

The court rejected both arguments.

The court first held that there was no way a viable Section 10(b) claim could have been pled before discovery; too many critical facts were contained in confidential audit materials.  Did that mean that BLBG acted in bad faith by filing the first – inadequate – Section 10(b) claim against KPMG?  No:

KPMG ignores the most obvious explanation: Bernstein Litowitz, on behalf of different clients, filed a complaint that they, in good faith, believed would be supported when the dust had settled around SVB’s titanic failure.  That complaint included a claim against KPMG that, upon reflection and the benefit of new information, they ultimately decided could not be sustained by the evidence available to them.  Then, when KPMG produced documents and other materials during discovery, Bernstein Litowitz learned that they had in fact been right the first time.  The timeline indicates that the attorneys representing Plaintiffs did what any good attorneys should do when they realize a potential claim lacks sufficient basis: they opted not to bring it.

The reference to “different clients” is a little odd; the original complaint was brought on behalf of Asbestos Workers and Heat & Frost Insulators Local, both of whom, as above, were on the consolidated complaint – but as Section 11 plaintiffs, not Section 10(b) plaintiffs.  But the point here is, even if that initial complaint was deficient, it was brought in the heat of the moment in the wake of an extraordinary bank failure, and its existence did not suggest any misconduct on the part of BLBG.

As for KPMG’s second argument about waiver, that too turned on the identity of the plaintiffs:

KPMG is right that a plaintiff may waive a claim if he has alleged it in an earlier complaint and then voluntarily dismissed it.  But that is not what happened here: these Plaintiffs never brought this claim.  The best KPMG can point to is that Bernstein Litowitz brought a Section 10(b) claim against KPMG on behalf of a different plaintiff.  The Court has no basis to conclude that Lead Plaintiffs had anything to do with that decision, and they should not be prejudiced because of decisions made by counsel before Lead Plaintiffs engaged them….

Once again, fair enough – the lead plaintiffs were not on the earlier complaint, and the lead plaintiffs (not Asbestos Workers and Heat & Frost Insulators Local) were the only ones named as Section 10(b) plaintiffs in the consolidated complaint (though one does wonder what happens at class cert; can Asbestos Workers and Heat & Frost Insulators Local be included in the Section 10(b) class?). 

But of course, all this kind of ignores the underlying reality, which is that plaintiffs in a securities class action are very different than plaintiffs in other kinds of cases.  Securities class actions – and I do not say this in a derogatory manner – are lawyer-driven.  Lawyers identify the case, they identify the plaintiffs, and they do the research to substantiate the claims.  BLBG may have been repping different plaintiffs at different times, but it would have been doing the legwork throughout, as well as making judgments about which claims to bring (along with Kessler, after the lead counsel appointment).

Anyhoo, my point is – this would all this would be easier if courts would just accept that the PSLRA’s set up really does encourage filing hasty, minimally-researched complaints because that’s the only feasible way you get to the point where a lead is appointed and the case gets going, and everyone should just be okay with that.

California Western School of Law (CWSL) is seeking applications from entry-level or lateral candidates for 2-3 tenure track or tenured faculty positions. We especially invite applications from candidates with interests in business associations, commercial law topics (including bankruptcy and antitrust), tax, family law, and trusts and estates.  

Established in 1924, CWSL is a non-profit law school accredited by both the ABA and WASC and an AALS member that has the distinction of being San Diego’s oldest law school. CWSL continues to balance a rigorous practical education with cutting edge scholarship and community service. As a result, our graduates have a reputation for being uniquely practice-ready.  

Our faculty members are experts in multiple fields who are frequently quoted authorities in numerous areas of law, including constitutional law, criminal law, insurance, legal technology, and labor and employment. We are proud of our faculty’s publication record, teaching, and service to the academy and legal community. 

Application materials should include a cover letter, C.V., and research agenda. Please direct application materials and questions to the chair of the Appointments Committee, Professor Laura Padilla, at: appointments@cwsl.edu. We will begin reviewing applications on August 13, 2026. The anticipated salary range for the positions is between $145,500 and $190,000, commensurate with experience and qualifications. CWSL provides additional benefits, such as housing assistance for those who qualify, pension contributions, and eligibility for summer scholarship stipends and publication awards.

CWSL is an Equal Opportunity Employer.