February 2021

This comes to us from friend-of-the-BLPB, Agnieszka McPeak:

Gonzaga Law is seeking a visiting assistant professor (VAP) for its Center for Law, Ethics, and Commerce, a centerpiece of Gonzaga Law School’s identity and mission. Persons with strong academic records, a dedicated commitment to teaching, and the potential for outstanding scholarship are encouraged to apply. The position is a full-time, 9-month, visiting position beginning in August 2021, with the potential to renew for one (but no more than one) additional year (contingent upon funding). The fellow may be permitted to work entirely remotely.

The successful candidate will teach up to three courses in the academic year in areas related to the Center and its mission, including at least one upper-level Business Law elective. Experiential and clinical teaching are also optional. The candidate will work closely with the Director of the Center for Law, Ethics, and Commerce to plan and participate in activities related to the Center’s goals and mission. In addition, the VAP will be invited to participate in faculty workshops and will be offered a budget for scholarship and travel. More information here: https://gonzaga.peopleadmin.com/postings/15150

I know Agnieszka (who directs the Center for Law, Ethics, and Commerce) is excited to…

Last week, I blogged about the dominance of Delaware organizational law and its implications for the laws of other states.  Which is why I was so interested to when Omari Scott Simmons posted his new paper, The Federal Option: Delaware as De Facto Agency, which takes a (sort of) different view.  He argues that Delaware has become de facto federal agency, delegated by the federal government the power to make corporate law nationally, and that this system works well for now, though there might be circumstances where federal chartering – and the structural oversight that would come with it – might be appropriate.  These could include situations where companies have received governmental bailouts, or where companies have committed significant wrongdoing and subject themselves to federal oversight as part of their settlement.

Of course, the concerns I’ve expressed in my posts are of a slightly different order – they’re about Delaware organizational law extending beyond the boundaries of internal affairs (and Delaware’s ability to define those boundaries in the first place) – but still, it’s an interesting holistic look at Delaware’s role in the corporate governance ecosystem.  Here is the abstract:

Despite over 200 years of deliberation and debate,

…

This isn’t the post I had planned to write. In fact, I had two other ideas. But I feel compelled to write this, knowing that it may cause more controversy than it’s worth. 

My colleague Stefan Padfield wrote a post called “The Marxism In Your Diversity Training” that some would call provocative. Others would call it offensive. I had planned to comment on it, but he’s taken it down. Did I agree with everything he said? No. Did I disagree with everything he said? Also no. 

I have a unique perspective. I’m a Black female. I protested about race and gender issues in college and law school. I’ve been a management-side employment lawyer for 25 years both as outside counsel and in house. I still consult with companies, deliver training on EEO laws and polices, conduct discrimination investigations, and advise plaintiffs. I work hard to make sure that companies do the right thing. I’ve posted here before about my skepticism about certain diversity mandates. Not that we don’t need MUCH more work in this area, but I’m not sure the approaches that some states and companies are taking will have long-term benefits.

My law school, like all others, is trying…

Carliss Chatman and Najarian Peters recently posted The Soft-Shoe and Shuffle of Law School Hiring Committee Practices, which is forthcoming in the UCLA Law Review Discourse.  The piece presents their perspective on the hiring process for legal academics and how many students currently experience the academy.  Since it was posted, it has averaged well over a hundred downloads a day.

The abstract also captures attention:

“We have too many Black and Brown faculty,” said no one ever in any law school. Each year we sit in appointments discussions and hear the same things. The classics-oldies but goodies from appointments committees are:

“We can’t find any qualified Black candidates.”

“There weren’t any in the Faculty Appointments Register (FAR), we scoured websites and emailed our Black friend yet found no one.” One of our colleagues actually lifted a large binder filled with leaflets from the FAR from one year over her head with both hands and waved it side to side to punctuate this very point in a faculty meeting. Everyone around the room including the Brown and other non-white faculty shook their heads in agreement co-signing. Seeing this made one of us wonder whether the FAR binder was some kind

…

Truth be told, I don’t know a whole lot about SPACs.  HOWEVER, I’ve been encountering this topic frequently these days, whether I’m following clearing and settlement news such as Ex-Cosmo editor teams up with ice hockey owner in Spac deal or doing my daily glance at the FT and reading about Why London should resist the Spac craze.  Wanting to be more in the know, I’ve just added Michael Klausner, Michael Ohlrogge & Emily Ruan’s “A Sober Look at SPACs” to my reading list.  Here’s the abstract:

A Special Purpose Acquisition Company (“SPAC”) is a publicly listed firm with a two-year lifespan during which it is expected to find a private company with which to merge and thereby bring public. SPACs have been touted as a cheaper way to go public than an IPO. This paper analyzes the structure of SPACs and the costs built into their structure. We find that costs built into the SPAC structure are subtle, opaque, and far higher than has been previously recognized. Although SPACs raise $10 per share from investors in their IPOs, by the time the median SPAC merges with a target, it holds just $6.67 in cash for each…

The University of Iowa College of Law anticipates hiring one lateral faculty member in the Health Law and Policy area and one lateral faculty member in the Environmental Law area.

QUALIFICATIONS: Consistent with the mission and responsibilities of a top-tier public research university, we are interested in candidates who are (or have the potential to become) recognized scholars and teachers and who will participate actively in the life of the College of Law.

APPLICATION PROCEDURE: To apply, candidates should submit a letter of interest, CV, a list of three references, and a law school transcript through Jobs@UIOWA, https://jobs.uiowa.edu, refer to Requisition #74104.  The University of Iowa College of Law is deeply committed to a community of excellence, equity, and diversity and welcomes applications from women, underrepresented minorities, persons with disabilities, LGBTQI+ individuals, and other candidates who will contribute to the diversification and enrichment of ideas and perspectives. Candidates who can contribute to these goals are encouraged to apply and to identify their strengths in this area.

ABOUT UIOWA: Iowa Law provides the ideal setting for professional growth as a law teacher and legal scholar. As a small school within a Big Ten university, we offer an…

I found the following in my inbox this morning: Facebook, Twitter, United Airlines and other large companies pledge to boost numbers of diverse leaders (“Nowhere in corporate America have I seen these metrics or an initiative with these types of metrics,” said SVLG CEO Ahmad Thomas in an interview with MarketWatch before the announcement of the initiative.).

That reminded me of some commentary Rod Dreher posted last year in response to similar initiatives by Microsoft and Well Fargo (here):

Nadella didn’t say that Microsoft will attempt to do that; he said that Microsoft will do that. You can only double the number of blacks at the company through discriminatory hiring and firing. If you are white, Asian, or Hispanic, and work at Microsoft, you will not have the same chance at promotion, or perhaps you will even have to be laid off to make room for black managers…. How is Wells Fargo going to double black leadership in five years without actively hiring and firing people on the basis of race? ….

According to theorists of “antiracism” like Ibram X. Kendi, any time you see fewer blacks within an institution …, that is conclusive evidence of…

I’ve previously expressed concern about Delaware organizational law intruding into other states’ spaces.  A new entry into the genre is VC Slights’s opinion in AG Resource Holdings, LLC, et al. v. Thomas Bradford Terral.

In AG Resource Holdings, Thomas Terral cofounded an LLC called AG Resource Management.  The business was eventually bought out by a private equity firm and restructured as a holding company, AG Resource Holdings LLC, that wholly owned the operating subsidiary, AG Resource Management LLC.  Terral was designated as one of several managers of the LLCs, and also was an officer.

Terral’s contractual obligations were embodied in separate agreements.  First, he had an Employment Agreement, which had various noncompetes, and a Delaware choice of law clause.  Second, the LLC agreements themselves required him to act in good faith and not compete, and chose Delaware law, and Delaware forums, to resolve any disputes. 

Terral was fired after it was discovered he was planning to compete with the companies, and he filed a complaint in Louisiana seeking to have the noncompete in the Employment Agreement declared unenforceable.  Terral’s argument – which a Louisiana court accepted on a motion for a preliminary injunction – was that because…

I just posted a new article, Regulatory Ritualism and other Lessons from the Global Experience of Insider Trading Law, on SSRN. This article is the culmination of a five-year research project. It offers a comprehensive comparative study of insider-trading regimes around the globe with an eye to much-needed reform in the United States. It is the first article to consider global insider trading enforcement in light of the problem of regulatory ritualism. Regulatory ritualism occurs where great attention is paid to the institutionalization of a regulatory regime without commitment to, or acceptance of, the normative goals that those institutions are designed to achieve. The article develops and expands upon some themes and arguments that were first sketched out in Chapters 5 and 11 of my book, Insider Trading: Law, Ethics, and Reform. Here’s the article’s abstract:

There is growing consensus that the insider-trading regime in the United States, the oldest in the world, is in need of reform. Indeed, three reform bills are currently before Congress, and one recently passed the House with overwhelming bipartisan support. As the U.S. considers paths to reforming its own insider trading laws, it would be remiss to ignore potential lessons from global…

In August 2020, Citibank, as administrative agent for a syndicated loan to Revlon, Inc., accidently wired nearly $900 million to lenders.  It had intended to send a $7.8 million interest payment.  Some of the lenders refused to return the money.  Not surprisingly, Citibank was not happy about this.  Yesterday, U.S. District Judge Jesse M. Furman issued a ruling denying Citibank’s attempt to recoup the funds.  As it turns out, under NY law, keeping money wired by mistake generally amounts to conversion or unjust enrichment. However, under the discharge-for-value defense, “The recipient is allowed to keep the funds if they discharge a valid debt, the recipient made no misrepresentations to induce the payment, and the recipient did not have notice of the mistake.”  

Here’s coverage of the ruling in the NY Times, WSJ, and Reuters.