January 2015

I had very limited time at AALS this year (unfortunately) but I still walked away with some great ideas (and a chance to say hello to a few, but not enough, friendly faces).  I am borrowing from many ideas shared in the panel cited below, as well as a few of my own.  As many of you prepare to teach BA/Corporations for the spring (or making notes on how to do it next time), here are a few fun new resources to help illustrate common concepts:

  • HBO’s The Newsroom.  A hostile takeover, negotiations with a white knight– all sorts of corporate drama unfolded on HBO’s Season 3 of The Newsroom.   I couldn’t find clips on youtube, but episode recaps (like this) are available and provide a good reference point/story line/hypo/exam problem for class.
  • This American Life– Wake Up Now Act 2 (Dec. 26, 2014).  This brief radio segment/podcast tells the story of two investors trying to reduce the pay of a company CEO.  The segment discusses board of director elections, board duties, board

    • …

    Over at The Conglomerate, Usha Rodrigues says, “Larry Ribstein was wrong.” Usha argues that she’s right to teach LLCs at the end of the course, and Larry was of the mind that LLCs should play a more prominent role in the business entities course.  

    For my teaching, I’m with Larry on this, though I am also of the mind that Usha (and other teachers) may have different goals, so taking another tack is not wrong.  I’m pretty sure we’re all better teachers when we are true to ourselves and our thinking.  For me, anyway, I am, without a doubt, at my worst in the classroom (and probably out) when I try to mimic someone else. 

    So here’s how Usha explains her thinking:

    I don’t leave LLCs til the end of the semester because I think they’re unimportant.  It’s because the cases are so damn thin.  It’s still such a new form, I just don’t see much there there.  Most of them wind up being trial courts who read the statute in completely stupid ways.  Blech.

    So I teach corporations and partnerships emphasizing fiduciary duty, default vs. mandatory rules, and the importance of the code.  In fact,

    …

    I just left the Association of American Law Schools annual meeting this morning.  I came back to a flat tire at the airport, but let’s not dwell on that . . . .  The conference was a good one, as these zoo-like mega conferences go.  

    I presented at the conference as part of a panel that focused on teaching courses and topics at the intersection of animals and the law.  (Thanks for the plug, Stefan!)  Yes, although it is a little known fact, I do teach courses involving animals and the law.  Regrettably, it is a somewhat rare thing for me, since I always have to teach these courses as an overload.  However, I also am the faculty advisor to our campus chapter of the Student Animal Legal Defense Fund and UT Pro Bono’s Animal Law Project (which compiled and annually updates a Tennessee statutory resource used by animal control and other law enforcement officers, as well as other animal-focused professionals, in the State of Tennessee).  In addition, I coach our National Animal Law Competitions team.  These non-classroom activities  give me ample time to teach in different ways . . . .

    I will not rehash all of my remarks from the panel presentation here.  In fact, I want to make a very limited point in this post.  While my calling to legal issues involving non-human animals is rooted in large part in being the “animal mom” of a rescue dog and rescue cat, I also participate in educational efforts in this area because I see it as my professional responsibility as a lawyer–and in particular, as a business lawyer.

    Last week, I gave you a list of the best fiction books I read in 2014. Here’s a list of the best non-law, non-fiction I read in 2014. I hope you find something that interests you. I read much more non-fiction than fiction, so this list is a little longer. As with my list of fiction, they’re in no particular order.

    1. Rose George, Ninety Percent of Everything: Inside Shipping, the Invisible Industry that Puts Clothes on Your Back, Gas in Your Car, and Food on Your Plate. An extremely well-written look at the global shipping industry—not the FedEx and UPS type of shipping, but actual ships. The author traveled over 9,000 miles on a container ship. The book discusses that voyage, interlaced with a boatload of material (pun intended) about the history of shipping, the regulation of shipping, shipwrecks, piracy, and a number of other subjects.

    2. Rich Cohen, Monsters: The 1985 Chicago Bears and the Wild Heart of Football. I’m neither a Chicago Bears fan nor a Mike Ditka fan, but this was an interesting book. For those who are young and familiar with the current Bears, yes, the Bears actually won back in 1985.

    Okay, fine, that’s not what the Second Circuit formally held, but to be honest, I can’t read this decision any other way.

    I’ve blogged about this issue before here, here, and here.  Basically, the situation is this:  In the class action context, there is frequently an issue as to whether the named plaintiff’s own individual claims against the defendant are sufficiently similar to the claims of the rest of the class so as to allow the named plaintiff to sue in a representative capacity.  Historically, these issues have been resolved via Rule 23 of the Federal Rules of Civil Procedure, which, among other things, requires a court to decide whether there is “commonality” among the class members, whether the common issues predominate over the individual ones, whether the named plaintiffs’ claims are typical of those of absent class members, and whether the named plaintiff will serve as an adequate representative for the absent class members.  Rule 23, of course, is only invoked after there has been substantial discovery, and certification determinations under Rule 23 frequently include expert analysis.

    In the wake of the mortgage crisis, more and more courts began making these determinations on the pleadings, framing the question not in terms of class certification, but in terms of whether the named plaintiff has “standing” to bring claims on behalf of absent parties, as I discussed in more detail here.  The issue has basically been that if an investment bank underwrites multiple RMBS offerings, and I buy an RMBS issued by a particular trust backed by a particular pool of mortgages, how can a court be certain that my claims are similar enough to purchasers of different RMBS issued by a different trust, backed by different mortgages, such that I should be permitted to represent those purchasers in a securities class action against the underwriter? 

    Courts have been unwilling to go the traditional route and wait until a class certification hearing to make this decision; instead, they have been seeking to limit a named plaintiff’s ability to represent absent RMBS purchasers.  They have been fundamentally troubled by the idea that a purchaser of one RMBS could represent all purchasers not only of that RMBS, but of multiple other RMBS, with face values totaling in the billions of dollars.  Courts have come up with a variety of bright-line rules limiting how the class can be defined, at the pleading stage – for example, some courts have held that plaintiffs may only represent purchasers of RMBS from the same trust; others have held that plaintiffs may only represent purchasers of RMBS from the same tranche within a trust.

    That orientation has spread to other kinds of claims – similar disputes have arisen in the context of false advertising, for example, where a single misrepresentation is alleged to have been plastered across multiple similar products.  (Say, a false representation that ice cream flavors are “natural,” appearing on chocolate, vanilla, and strawberry – is it necessary that the plaintiff have purchased neapolitan in order to represent absent purchasers of all three flavors?).

    [More under the jump]

    To the extent you will be attending the Association of American Law Schools Annual Meeting in DC, here are a couple of panel recommendations that come with the added benefit of meeting a BLPB blogger in person:

    1. Keeping it Current: Animal Law Examples Across the Curriculum (01/03/2015, 5:15-6:30 pm)

    Moderator: Katherine M. Hessler, Lewis and Clark
    Speaker: Susan J. Hankin, Maryland
    Speaker: Joan M. Heminway, Tennessee
    Speaker: Courtney G. Lee, McGeorge
    Speaker: Kristen A. Stilt, Harvard

    2. The Role of Corporate Personality Theory in Regulating Corporations (1/5/2015, 2:00-3:00 pm)

    Moderator: Stefan Padfield, Akron
    Speaker: Margaret Blair, Vanderbilt
    Speaker: Elizabeth Pollman, Loyola
    Speaker: Lisa Fairfax, George Washington
    Speaker: David Yosifon, Santa Clara

    PS–For more information on the day-long program of the AALS Section on Socio-Economics on Monday, Jan. 5, as well as the day-long Annual Meeting of the Society of Socio-Economists on Tuesday, Jan. 6, go here.

    One of my new year’s resolutions for 2015 is to fast from e-mail every Saturday. Now that I have posted this, my co-bloggers and readers can keep me accountable. Currently, I probably check my e-mail 20+ times a day, every day — a habit formed during law firm life.  

    I thought about fasting from the internet/electronics entirely on Saturdays, and I am still going to try to avoid the internet/electronics on Saturdays as much as possible, but I wanted to set a realistic goal. 

    An acquaintance of mine in New York City, Paul Miller, went without the internet for an entire year (with less promising results than he had hoped). While I remember a time before the internet — and a time when the internet was so slow it was almost useless — it is hard for me to imagine going without the internet for a week, much less for a year.  That said, I think it healthy to loosen the electronic leash a bit every once in a while.  

    I’d also like to cut back the number of times I check e-mail and the amount of time I spend responding to e-mails in general. If any readers…

    Happy New Year.

    Starting Saturday morning (or maybe tomorrow night), I’ll be live tweeting from the Association of American Law Schools (AALS) conference. Because I teach both civil procedure and business associations, my tweets will largely relate to those sessions as well as sessions for new law professors.

    Next Thursday I will summarize the high points of the conference, at least from my perspective. 

    My twitter handle is @mlnarine and the AALS hashtag is #AALS2015. If you’re at the conference and a blog reader, please say hello.