May 2018

If you’re anything like me, you’ve spent the last few days procrastinating studying the drama unfolding at CBS.  (If you’re not aware, here’s an article summarizing the state of play; the rest of this post assumes readers are familiar with the basic facts).

There’s a lot to chew on here, and I’m sure that as the case develops, there will be much more to say, but here are some off-the-cuff initial thoughts, in no particular order.

[More under the jump]

As a member of the Section on Women in Legal Education of the Association of American Law Schools, I was informed earlier this week about three openings at Emory Law, two of which are for business law folks.  The message is included below.

I am pleased to serve on the Appointments committee at Emory Law for the 2018-2019 school year. We are conducting searches for exciting young scholars in three tenure-track positions: (1) Business law with a specialization in M&A and/or Securities Regulation, (2) General Business law (no specific specialization) with the ability to teach Business Associations/Corporations and Contracts, and (3) Criminal Procedure with the ability to also teach Evidence. We are only looking for junior laterals (no more than 3 years in a tenure-track position) and entry-level candidates. Please feel free to contact me if you are interested or know of others who might be interested.

Best regards,
Barbara

Barbara Bennett Woodhouse
L. Q. C. Lamar Professor of Law
Emory University School of Law
1301 Clifton Road
Atlanta, GA. 30322
cell – 352-262-1854
barbara.woodhouse@emory.edu

I urge those who are interested to contact Barbara for more information.  In any event, be on the lookout for the formal position

Deal Structure, a new paper by Cathy Hwang and Matthew Jennejohn, explains how sophisticated parties now structure increasingly complex contracts to achieve contracting’s various goals.  The article does an excellent job of explaining how today’s corporate contracts differ from the relatively straightforward contracts encountered in most contracts casebooks. 

Hwang and Jennejohn explain that parties may be able to structure their deals to nudge courts toward adopting a preferred interpretative approach. Courts facing lengthy, complex contracts must decide whether they want to adopt a textual or contextual approach.  Prior research has noted that when parties use standards, they nudge a court toward contextualism—looking outside of the four corners of the contract for interpretive clues. In contrast, rules signal to courts to use a textual approach to interpretation. That pairing—of standards with contextualism and rules with textualism—allows Hwang and Jennejohn to make a further argument: that for this pairing to work, parties need to pay attention to how they structure the provisions within their complex agreements.  For instance, if parties intend to circumscribe judicial intervention in an issue with a rule-like provision, they must take care to isolate that provision from others in the agreement using a modular design.  In …

A recent Georgia case considers whether a “sole owner” of an LLC can be held liable for negligent actions of his or her LLC. Of course, once again, the limited liability company (LLC), is called by the court a “limited liability corporation,” and the court proceeds to apply corporate law. Here’s the relevant excerpt:
The Goldens contend that the trial court erred by denying their motion for summary judgment as to negligence claims asserted against them personally. They assert that corporate law insulates them from liability and that, while a member of an [sic] limited liability corporation may be liable for torts in which he individually participated, Ugo Mattera has pointed to no evidence that the Goldens specifically directed a particular negligent act or participated or cooperated therein. We agree with the Goldens that they were entitled to summary judgment on Ugo Mattera’s negligence claim.
An officer of a corporation who takes part in the commission of a tort by the corporation is personally liable therefor, and an officer of a corporation who takes no part in the commission of a tort committed by the corporation is not personally liable unless he specifically directed the particular act to be done

…

I always have loved the game of tag, and I love a challenge.  More importantly, I love a conversation about business law . . . .

Last week, Steve Bainbridge posted a follow-on to posts written by Ann and me on the application of fiduciary duties to the private lives of corporate executives.  As Steve typically does in his posts, he raises some nice points that carry forward this discussion.  In a subsequent Tweet, Steve appears to invite further conversation from one or both of us by linking to his post and writing “Tag.  You’re it.”

Screenshot 2018-05-14 22.50.35
I do want to make two additional points.  First, I offer an endorsement of something Steve wrote in his post.  Specifically, Steve asks (with a small typo corrected): 

 . . . to what extent should a board have Caremark duties to monitor a CEO’s private life. Personally, I think Caremark is not limited to law compliance programs. A board presented with red flags relating to serious misconduct–especially misconduct in a sphere of life directly related to the corporation’s business (think Weinstein)–has a duty to investigate. But, again, does that mean the board should hire private investigators to track the CEO 24/7?

I agree…

I’ve been hunkered down grading exams this week, so all I’ve got for you is this tale tail of a developing economy:

Dog Always Brings A Leaf To ‘Buy’ Himself Treats At The Store

For the last five years or so, the campus of Colombia’s Diversified Technical Education Institute of Monterrey Casanare has been home to a sweet black dog named Negro. There, he serves as a guardian of sorts, keeping watch over things as students go about their studies.

In return, Negro is cared for by the school’s faculty, who provide him with food, water, attention and a safe place with them to pass the night.

But the dog has apparently decided that anything beyond that is up to him.

Early on in Negro’s tenure at the school, he came to be aware of the little store on campus where students gather to buy things on their breaks; sometimes they’d buy him cookies sold there.

This, evidently, is where the dog first learned about commerce — and decided to try it out himself.

“He would go to the store and watch the children give money and receive something in exchange,” teacher Angela Garcia Bernal told The Dodo. “Then one

…

Earlier today, I received this call for submissions from the American Business Law Journal (“ABLJ”). I published with the ABLJ in 2017 and had a fabulous experience. The manuscripts are blind/peer-reviewed, something we need more of in the legal academy, in my opinion. I found the substantive comments to be of a much higher quality than one gets from a typical law review, and, unlike the practice of some peer-reviewed journals, the ABLJ published my manuscript in a timely manner. 

———-

The American Business Law Journal is seeking submissions of manuscripts that advance the scholarly literature by comprehensively exploring and analyzing legal and ethical issues affecting businesses within the United States or the world. Manuscripts analyzing international business law topics are welcome but must include a comprehensive comparative analysis, especially with U.S. law.

 As most of you know, the ABLJ is a triple-blind, peer-reviewed law journal published by the Academy. The ABLJ is available on Westlaw and Lexis, and ranks in the top 6% of all publications in the Washington & Lee Submissions and Ranking list by Impact Factor (2016) and in the top 1% of all peer-edited or refereed by Impact Factor (2016).  The Washington & Lee list ranks…