October 2014

There has been much discussion recently about the SEC’s use of administrative proceedings, rather than court proceedings, for enforcement purposes. Both Peter Henning  and Gretchen Morgenson  have addressed the issue in the New York Times. And Jay Brown at Race to the Bottom has devoted several posts to the issue. See here,  here,  here, and here. (This final post claims to be part 5, but I believe this was a numbering error.)  .

I do not want to rehash that discussion, but I do want to bring your attention to an excellent new book I have been reading, Is Administrative Law Unlawful?, by Philip Hamburger.  Hamburger is a Columbia Law School professor who specializes in constitutional law and history. The book is an extensive examination of the history of administrative legislation and adjudication in England and America, going back to the Magna Carta. He constructs a convincing argument that current administrative practice is inconsistent with both English and American history and practice.

This is not beach reading. The book is well-written, but the arguments and the history are complex and require serious thought. It is, however, worth the effort. The book is…

My colleague Mark Phillips recently published a short article in the Nashville Bar Journal entitled Can Entrepreneurial Education Restore Faith in Legal Education? (pgs. 6-7). Mark primarily teaches entreprenuership classes in the undergraduate and graduate business schools at Belmont University, but has a JD from NYU Law, in addition to his MBA from NYU (Stern) and his PHD from George Washington University. 

For local readers, Mark will be speaking at a Nashville Bar Association breakfast on Nov 11th (at 8 am at Noshville restaurant at 1918 Broadway, Nashville, TN 37203). Mark has also started a website (www.eEsquire.net), which may be of interest to readers.

A portion of Mark’s recent Nashville Bar Journal article is below:

A great deal was lost in legal industry during the recent recession, but perhaps the most lasting damage was inflicted upon the reputation of law schools. When news broke in 2011 that a significant number of law schools had distorted their placement figures to increase enrollment and rankings, both current and prospective law students were shocked. After a stretch of bad publicity, coupled with some inevitable lawsuits, law schools worked to erase their new-found stigma through greater disclosure and transparency. Yet

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As I previously posted, this semester I’m co-teaching a seminar with an old law school friend, Tanya Marsh (well, seminar-ish – we ended up with 17 students) on the financial crisis.

A couple of weeks ago, I dedicated a class to the concept of “regulation by deal” – inspired Steven Davidoff Solomon and David Zaring’s article with that title.  We talked about how Treasury and the Fed used dealmaking approaches to save individual firms, and thus the economy as a whole, and the corporate law issues that the government’s approach raised (lots of great inspiration also came from Marcel Kahan and Edward Rock’s When the Government is the Controlling Shareholder).  I assigned excerpts of the Regulation by Deal article, as well excerpts from the complaint filed by Fannie & Freddie shareholders, the AIG complaint, and the SIGTARP report on AIG’s payments to counterparties.  We also talked about the mergers between JP Morgan and Bear Stearns, and between Bank of America and Merrill Lynch.

Well, it was lucky timing, because that class – by sheer happenstance – was scheduled just before the AIG trial began, and then earlier this week, the Fannie & Freddie complaint was dismissed. …

Earlier, I posted a list of legal studies positions in business schools.

Today, I decided to go through the helpful PrawfsBlawg spreadsheet on hiring committees to draw out the law schools that listed at least one business law area of interest. The PrawfsBlawg spreadsheet is a few months old, so it is possible that the schools’ needs have changed somewhat in the interim. Also, many schools did not list any specific areas of interest, but hopefully this list is still helpful to our readers.

If readers know of any other law schools that have an interest in hiring in one or more business law areas, please leave the school name in the comments (with a link to the posting, if possible) or send me an email. Updated positions (that are not on the PrawfsBlawg list) will include a link to the posting, if possible. 

Updated 1/5/14

Alabama (business law)

Belmont (business law)

California Western (business associations)

Campbell (financial regulation)

Detroit Mercy (business law)

Florida A&M (business law)

Florida State (business law)

Fordham (international economic law)

Georgetown (transactional clinic, tenure track)

Loyola (Los Angeles) (associate clinical professor/director of business law practicum)

Maryland (business law)

North Carolina (corporate finance, international business…

I am back teaching law students again this semester, in addition to teaching business school students. Last class, I did my “mid-course” teaching evaluations in the law school, which I do voluntarily each semester to gauge how the courses are going for the students. Almost always, I pick up on some important trends from the responses. One somewhat frustrating thing, however, is that students often want contradicting things. (e.g., “the previous class review is extremely helpful” and “the previous class review is a complete waste of time.”)

The Lon Fuller quote below, from his article On Teaching Law, 3 Stan. L. Rev. 35, 42-43 (1950), helped me realize that some of the contradition, even within the same individual, is natural and expected.

Herein lies a dilemma for student and teacher. The good student really wants contradictory things from his legal education. He wants the thrill of exploring a wilderness and he wants to know where he stands every foot of the way. He wants a subject matter sufficiently malleable so that he can feel that he himself may help to shape it, so that he can have a sense of creative participation in defining and formulating it. At the

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For the second time, I have assigned my BA students to write their own shareholder proposals so that they can better understand the mechanics and the substance behind Rule 14-a8. As samples, I provided a link to over 500 proposals for the 2014 proxy season. We also went through the Apple Proxy Statement as a way to review corporate governance, the roles of the committees, and some other concepts we had discussed. As I reviewed the proposals this morning, I noticed that the student proposals varied widely with most relating to human rights, genetically modified food, environmental protection, online privacy, and other social factors. A few related to cumulative voting, split of the chair and CEO, poison pills, political spending, pay ratio, equity plans, and other executive compensation factors.

After they take their midterm next week, I will show them how well these proposals tend to do in the real world. Environmental, social, and governance factors (political spending and lobbying are included) constituted almost 42% of proposals, up from 36% in 2013, according to Equilar. Of note, 45% of proposals calling for a declassified board passed, with an average of 89% support, while only two proposals for the separation…

Yesterday, I shared with my faculty during our teaching conversations* my research and thinking on gender equality in the classroom.  How do we handle gender in the classroom?  My guess is that most of us teaching honestly strive to achieve and believe that we create a gender-neutral, or more accurately an equally-facilitative classroom environment.  You can image the horror I felt when I received voluntary, anonymous student feedback last spring that said “you may not mean to or know you are doing this, but you treat men and women differently in class.”  From whose perspective was this coming?  How differently? And who gets the better treatment?  I was baffled. As a female law professor, I was hoping that I got a pass on thinking critically about gender because I am female, right?  Wrong. 

This feedback launched my research into the area and a self-audit of the ways in which I may be explicitly treating students differently, implicitly reinforcing gender norms, and unintentionally creating a classroom environment that is different from my ideal.

Below are some observations and discoveries about my own behavior and a summary of some relevant research.