October 2016

Belmont University College of Law in Nashville, TN has posted a professor opening and the school’s areas of interest include business law. My appointment is in Belmont’s business school, but I also occasionally teach in the law school, and I could not recommend the school (or the city of Nashville) more highly. I have updated my business law professor openings post here and am happy to add other postings. 

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Belmont University College of Law, located in vibrant Nashville, Tennessee, invites applications from entry- to mid-level candidates for a tenure-track faculty position to begin in 2017-18.  Our primary areas of recruiting focus include criminal law, business law, and health law.

Applicants should have an exemplary academic record and should demonstrate outstanding achievement or potential in scholarship and teaching.  Our goal is to recruit dynamic, bright, and highly motivated individuals who are interested in making significant contributions to our law school and its students.  Practice experience is preferred, and teaching experience is desirable.  For more information about the College of Law, visit our website at www.belmont.edu/law.

Belmont University College of Law is an ABA accredited law school with approximately 300 students in the heart of Nashville, one of the fastest growing…

*The guest post is contributed by Itai Fiegenbaum who teaches corporate law at Tel Aviv University and Ramat Gan College of Law and Business.  

Today’s post continues the discussion started by Anne’s informative post regarding the law of controlling stockholders. Anne astutely notes that the MFW “enhanced ratification” framework was rendered in connection with a going private merger. Although I recognize the intuitive appeal, I wish to call into question the impact of MFW’s holding on other manners of controlling shareholder transactions.

Going private transactions differ from going concern transactions in that their successful completion wipes out the minority float. This distinction accelerates stockholders’ divergent incentives and raises the possibility for minority stockholder abuse. An unscrupulous controller might structure the transaction in a manner that captures all unlocked value for later private consumption. Going private transactions allow controlling stockholders to shed the restrictions of the public market, thereby evading future retribution by minority stockholders. Policy considerations accordingly call for superior protection of minority stockholders participating in a going private transaction.

Since MFW establishes a procedure for achieving less intrusive judicial review for going private transactions, it stands to reason that this procedure should apply to all…

Last week, I explained that the “War on Coal” Is Really A Competition Issue, with cheap natural gas prices as a major reason coal production and use have declined. Beyond the impact of natural gas on coal jobs, technology is also an issue. Technology is making mining more efficient, but it is making the market harder for coal miners. Following is a chart I created from Energy Information Administration data that shows coal production and employment statistics for 2013 and 2014.

Coal Production Data

  2014 2013 Percent Change
Coal-Producing Number of Mines Production Number of Mines Production Number of Mines Production
State and Region1
             
Appalachia Total 804 266,979 877 269,672 -8.3 -1
— Underground 292 193,434 339 188,090 -13.9 2.8
— Surface 512 73,545 538 81,582 -4.8 -9.9
Powder River Basin (surface) 16 418,156 16 407,567 – 2.6

Coal-Related Employment Data

Coal-Producing Underground Surface Total Underground Surface Total Underground Surface Total
State and Region
                   
Appalachia Total 32,545 12,141 44,686 35,740 14,115 49,855 -8.9 -14 -10.4
Powder River Basin – 6,592 6,592 – 6,635 6,635 – -0.6 -0.6

The data show the coal-production and…

    Does a partner have actual authority, simply as a matter of his “partner” status, to bind the partnership to an ordinary business transaction?  On the one hand, RUPA § 401(j) states that “[a] difference arising as to a matter in the ordinary course of business of a partnership may be decided by a majority of the partners.”  That suggests that a partner is not authorized to act absent a majority vote.  On the other hand, RUPA § 301(1) states that “[e]ach partner is an agent of the partnership,” and comment 2 states that “[t]he effect of Section 301(1) is to characterize a partner as a general managerial agent having both actual and apparent authority co-extensive in scope with the firm’s ordinary business” (emphasis added)).

    The comment to § 301 has always struck me as an odd place for discussing actual authority.  Actual authority is based on a partner’s relationship to the other partners and the partnership.  Section 301, however, is in the Article dealing with a partner’s relationship to non-partner outsiders.  Section 301(1) in particular is about apparent authority.  What supports the assertion in the comment, therefore, that a partner has ACTUAL authority co-extensive in scope with the firm’s ordinary business?

 

Assume a state trial court issues an opinion in a particular case and the case is not appealed.  Should a legal scholar using the opinion to support or refute a key point (in the text of a written work) characterize the weight or status of the opinion (e.g., noting that it is a trial court opinion and that is has not been appealed)?  Justify your answer.

If the trial court at issue is the Delaware Chancery Court and the opinion addresses matters under the Delaware General Corporation Law, does that alter your answer?  Why?  Why not?

I am having fun considering these issues today in connection with my work on a symposium paper.  I have not yet decided how to handle the specific matter that raises the questions.  Accordingly, it seemed like a good idea at this juncture to share my questions and seek collaboration in answering them . . . .

The following post comes to us from Prof. J. Scott Colesanti and a former student of his, Karen Eng. Scott is a Professor of Legal Writing at the Maurice A. Deane School of Law at Hofstra University, a former co-editor of this blog, and author of “Legal Writing, All Business.”

F.A.A. VACATUR IN THE SECOND CIRCUIT: NOW THAT TOM BRADY HAS SAT, WHERE DO WE STAND?

By J. Scott Colesanti and Karen Eng (October 12, 2016)

  1. Introduction

Late in the summer, New England Patriots quarterback Tom Brady announced that he would not further appeal the discipline imposed against him by the National Football League (“NFL”). That decision ended an 18-month ordeal which highlighted, among other things, the unpredictability of sports league sanctions, in general, and the finality of penalties under NFL Collective Bargaining Agreement (“CBA”) Article 46, in particular. This article examines the resulting state of the law in the Second Circuit regarding review of arbitrations under Sections 10(a)(2) and (3) of the Federal Arbitration Act (“F.A.A.”), which provided – in part – the means for Brady’s appeal.

That Pascal quote encapsulates why I strongly disagree with Noah Feldman’s Bloomberg column on the new word limits for federal appellate briefs. 

The new rules reduce the number of words in opening briefs by 1,000, and in reply briefs by 500.  Feldman argues that the reduction will cut down billable hours.  He’s wrong; it will do the opposite.

When I was in practice, I spent nearly as much time cutting words from briefs as I did doing the initial draft.  Every first draft clocked in at more than the then-limit of 14,000 words; in some cases, I was closer to 21,000 words my first time through.  Only after substantial editing – going over each sentence again and again, and (naturally) taking serious liberties with Bluebook format – was I able to bring briefs within the limit.  (I never went this far, though.)

(Note to Lexis:  You are at a disadvantage relative to Westlaw because your citation format for unpublished cases has more words. I did initial research on Lexis but then translated all citations to Westlaw to bring my word count down.  Rookie mistake, guys.)

For what it’s worth, I think the new limits are a travesty.  Judges often…

As a professor who moved from a law school to a business school, I remain amazed how little the two legal scholarly worlds overlap. I do, however, think the overlap is increasing somewhat, as more professors move between the two types of schools and the conferences and journals becoming a bit less segregated. That said, I imagine that many of our law professor readers may have missed legal studies professor Larry DiMatteo’s (University of Florida, Warrington College of Business) 2010 American Business Law Journal article on strategic contracting. I had not read it until I moved to a business school and met Larry at a legal studies conference. Larry’s article is proving useful in my current work, so I thought I would share it here with our readers. Abstract reproduced below:

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This paper uses sources taken from the legal literature, as well as literature from strategy and human resource management. It explores Professor Gilson’s noted remark in the Yale Law Journal that “business lawyers serve as transaction cost engineers and this function has the potential for creating value.” This exploration focuses on the strategic use of contract law in gaining a competitive advantage and to create value. It begins by differentiating…

Today I used Wells Fargo as a teaching tool in Business Associations. Using this video from the end of September, I discussed the role of the independent directors, the New York Stock Exchange Listing Standards, the importance of the controversy over separate chair and CEO, 8Ks, and other governance principles. This video discussing ex-CEO Stumpf’s “retirement” allowed me to discuss the importance of succession planning, reputational issues, clawbacks and accountability, and potential SEC and DOJ investigations. This video lends itself nicely to a discussion of executive compensation. Finally, this video provides a preview for our discussion next week on whistleblowers, compliance, and the board’s Caremark duties.

Regular readers of this blog know that in my prior life I served as a deputy general counsel and compliance officer for a Fortune 500 Company. Next week when I am out from under all of the midterms I am grading, I will post a more substantive post on the Wells Fargo debacle. I have a lot to say and I imagine that there will be more fodder to come in the next few weeks. In the meantime, check out this related post by co-blogger Anne Tucker.

Job posting from an e-mail I recently received:

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The UNIVERSITY OF NEBRASKA COLLEGE OF LAW invites applications for

lateral candidates for a tenured faculty position to hold the Clayton K. Yeutter Chair at

the College of Law. This chaired faculty position will be one of four faculty members to

form the core of the newly-formed, interdisciplinary Clayton K. Yeutter Institute for

International Trade and Finance. The Institute also will include the Duane Acklie Chair at

the College of Business Associations, the Michael Yanney Chair at the College of

Agricultural Sciences, and the Haggart/Works Professorship for International Trade at the

College of Law. The Yeutter Chair, along with the other three professors, will be

expected to support the work and objectives and ensure the success of the Yeutter

Institute. The Yeutter Chair will teach courses at the College of Law, including

International Finance. Other courses may include Corporate Finance and/or other related

classes pertaining to issues arising in international business and finance. More on the

Yeutter Institute can be found at http://news.unl.edu/newsrooms/today/article/giftsestablish-

endowed-chairs-for-yeutter-institute/ .

 

Minimum Required Qualifications: J.D Degree or Equivalent; Superior Academic

Record; Outstanding Record of Scholarship in International Finance and/or other areas

related to international business; and…