August 2015

The school year begins soon, and I’ll be teaching Business Enterprises.  (That’s what Tulane calls the basic BA/Corps class.)

One of my first tasks was to select a casebook.  There are a lot of options, and it was interesting for me to analyze how each reflects the philosophy/policy preferences of its authors.  I suppose I should have predicted that the Klein/Ramseyer/Bainbridge book would open its discussion of corporations with the Boilermakers case, and its characterization of corporate governance documents as a “contract” among shareholders.  The Allen/Kraakman/Subramanian book heavily emphasizes economic analyses.   Unsurprisingly, the casebook partially authored by my co-blogger Joan Heminway (i.e., the Branson/Heminway/Loewenstein/Steinberg/Warren book) demonstrates a particular interest in alternative entities, and Hazen/Markham seems to feel derivative actions have dominated far too much academic attention (and also that Dodge v. Ford Motor Co. needs to be retired).

One significant point of variation is how far the books go in integrating state and federal law.  As federal securities regulation expands, it clearly poses a problem for casebook authors (and business professors!) in terms of organizing the material in a coherent fashion.  It’s harder to simply divide the class into state governance law and federal disclosure law (which is how…

An Academy of Legal Studies in Business (“ALSB”) colleague suggested I do a post listing recent promotion and tenure news for fellow legal studies professors. I think that this is a worthy thing to celebrate on the blog.

Below I have listed the recent P&T news sent to me by ALSB listserv members. I may update this list as I receive more news. Congrats all! 

Brian Halsey (West Chester) – promoted to Professor and appointed as Director of the MBA Program

Henry Lowenstein (Coastal Carolina) – awarded the William J. Baxley, Jr. Applied Business Endowed Professorship for 2015-16

Joshua Perry (Indiana) – promoted to Associate Professor with Tenure and awarded the endowed W. Michael & William D. Wells Life Sciences Faculty Fellowship

Denise Smith (Eastern Illinois) – promoted to Professor

Nancy White (Central Michigan) – named Chair of the Finance and Law Department

Eric Yordy (Northern Arizona) – promoted to Associate Professor with Tenure

Apparently the corporate tax inversion crackdown by the Obama administration is not working. The Financial Times reported this week that three companies have announced plans to redomicile in Europe in just one week. I’m not sure that I will have time to discuss inversions in any detail in my Business Associations class, but I have talked about it in civil procedure, when we discuss personal jurisdiction.

From my recent survey monkey results of my incoming students, I know that some of my students received their business news from the Daily Show. In the past I have used Jon Stewart, John Oliver, and Stephen Colbert to illustrate certain concepts to my millennial students. Here are some humorous takes on the inversion issue that I may use this year in class. Warning- there is some profanity and obviously they are pretty one-sided. But I have found that humor is a great way to start a debate on some of these issues that would otherwise seem dry to students. 

1)   Steve Colbert on corporate inversions-1– note the discussion on fiduciary duties

2)    Steve Colbert on corporate inversions interviews Allan Sloan

3)   Jon Stewart- inversion of the money snatchers and on…

This weekend I will be in Panama filling in at the last minute for the corporate law session for an executive LLM progam. My students are practicing lawyers from Nicaragua, El Salvador, Costa Rica and Paraguay and have a variety of legal backgrounds. My challenge is to fit key corporate topics (other than corporate governance, compliance, M & A, finance, and accounting) into twelve hours over two days for people with different knowledge levels and experiences. The other faculty members hail from law schools here and abroad as well as BigLaw partners from the United States and other countries.

Prior to joining academia I spent several weeks a year training/teaching my internal clients about legal and compliance matters for my corporation. This required an understanding of US and host country concepts. I have also taught in executive MBA programs and I really enjoyed the rich discussion that comes from students with real-world practical experience. I know that I will have that experience again this weekend even though I will probably come back too brain dead to be coherent for my civil procedure and business associations classes on Tuesday.

I have put together a draft list of topics with the help…

It is orientation time for West Virginia University College of Law, and I am sure other law schools around the country. If not, it’s coming soon. I always like the buzz of the new students returning to the building, though it is a little bittersweet as the time I had for other projects is clearing nearing the end. All in all, though, I miss the students and the activity, so I’m happy the new year is getting ready to start. 

The combination of excitement and trepidation (if not fear) seems to be what stands our to me the most. It makes sense. Law school is a big undertaking, and it’s not easy.  And it can be hard because it can be challenging both academically and socially.  As my wife has noted, “Law school can be more like high school than high school.”  (I had a distinct advantage in skipping a lot of that because we were married when we started law school.)

To that end, here are my suggestions, based on the promises I made to myself when I left my job and went back to law school. Give it a try (and I welcome additions to the list…

The law school in the state next door to mine is hiring faculty. Their football team isn’t as good as ours, but it’s a pretty good law school in spite of that deficiency. Here’s the listing:

THE UNIVERSITY OF IOWA COLLEGE OF LAW anticipates hiring several tenured/tenure track faculty members and clinical faculty members (including a director for field placement program) over the coming year. Our goal is to find outstanding scholars and teachers who can extend the law school’s traditional strengths and intellectual breadth. We are interested in all persons of high academic achievement and promise with outstanding credentials. Appointment and rank will be commensurate with qualifications and experience. Candidates should send resumes, references, and descriptions of areas of interest to:  Faculty Appointments Committee, College of Law, The University of Iowa, Iowa City, Iowa  52242-1113.

THE UNIVERSITY OF IOWA is an equal opportunity/affirmative action employer. All qualified applicants are encouraged to apply and will receive consideration for employment free from discrimination on the basis of race, creed, color, national origin, age, sex, pregnancy, sexual orientation, gender identity, genetic information, religion, associational preference, status as a qualified individual with a disability, or status as a protected veteran.

As I continue my (futile?) quest to exhaust my electronic reading pile before the fall semester begins, I recently read a nice article on business lawyering: Praveen Kosuri, Beyond Gilson: The Art of Business Lawyering, 19 LEWIS & CLARK L. REV. 463 (2013), also available on SSRN here.

Kosuri asks what distinguishes great business lawyers, and develops a three-tiered pyramid of the skills that transactional business lawyers need. At the bottom of the pyramid are what Kosuri calls foundational skills: reading and understanding contracts; research and drafting; financial literacy; and a basic knowledge of business law. The next level of the pyramid, which Kosuri calls transitional skills, includes negotiation; structuring deals; risk management; and transaction cost engineering. The top level of the pyramid, which Kosuri calls optimal skills, includes understanding business; understanding people; problem-solving; and advising.

Kosuri then considers who would be best at teaching each of those categories of skills and how to teach them. I don’t agree with everything he says, but the article is insightful and certainly worth reading.

Here’s the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple…

In Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 2015 U.S. App. LEXIS 12800 (2d Cir. July 24, 2015), the Second Circuit reversed the district court’s dismissal of state law fraud claims arising out of the sale of hybrid CDOs.  The court spent an extraordinary amount of time discussing the concept of loss causation, although to be honest, I’m not at all confident that the extended discussion actually clarifies matters, at least in those circuits that already follow Second Circuit law on the subject. 

(There is currently a circuit split on the definition of loss causation under the federal securities laws, and a newly-filed cert petition asking the Supreme Court to resolve it.  But I digress.)

What I actually was excited to see was the Second Circuit’s discussion of the conditions under which plaintiffs should be permitted to amend their pleadings.

As I previously posted, courts are all over the map about allowing amended pleadings in securities fraud cases.  Some courts are extremely permissive; others essentially grant plaintiffs only one bite at the apple (although that standard is usually more applicable to federal, rather than state, claims).  Many courts have held that if plaintiffs want the…

The internet has been abuzz this week with news that Netflix will now offer of “unlimited” maternity and paternity leave to its employees.

I place “unlimited” in scare quotes because, while Netflix uses that word, the announcement makes clear that the leave is unlimited….during the first year after a child’s birth or adoption.

Nonetheless, one year of paid maternity/paternity leave is extremely generous by U.S. company standards. 

Amid the praise, there has been a fair bit of skepticism. 

No good deed goes unpunished? As far as I could tell, the criticism boils down to the following:

  • Netflix (and other companies) may not be able to afford this massive benefit
  • The policy does not cover all Netflix employees
  • The policy may lead to jealousy and strained working relationships
  • Parents will have a hard time separating from their children

…