July 2021

University of Illinois College of Law
Tenured/Tenure Track Faculty

University of Illinois College of Law invites applications for positions on the tenured/tenure-track faculty to begin in August 2022. The College welcomes applications from scholars in all subject areas of the law.

The University of Illinois offers a distinguished and collegial law school community in the setting of a premier research university, affording opportunities for cutting-edge legal scholarship and innovative interdisciplinary work. Champaign-Urbana is a vibrant college town with an exceptional quality of life.

JOB DESCRIPTION: This is a nine-month, 100% time tenured or tenure track position. As a member of the College faculty, you would teach, contribute to your areas of specialization through scholarly research, and provide service via internal and external engagement.

JOB QUALIFICATIONS: Applicants must have a J.D. or Ph.D. or their equivalent, a strong academic record, and a record of scholarly distinction or great scholarly promise. These positions are full-time, nine month, tenured or tenure-track positions. Salary is commensurate with experience.

APPLICATION PROCEDURE: For full consideration, please use the AALS FAR website, https://www.aals.org/services/recruitment/far/ (preferred) or create a candidate profile at https://jobs.illinois.edu and upload the following required documents: Curriculum Vitae, sample publications, and contact information of four references…

 . . . I figure it is still OK to publish a link to the SSRN posting of my co-authored article from the 2020 Business Law Prof Blog symposium, Connecting the Threads.  Published earlier in the spring, this piece, entitled Business Law and Lawyering in the Wake of COVID-19, was written with two of my students: Anne Crisp (who will start her 3L year in about a month) and Gray Martin (who graduated in May and will take the bar exam next week).  My March 30, 2021 post on business interruption insurance came from this article.  The SSRN abstract is included below.

The public arrival of COVID-19 (the novel coronavirus 2019) in the United States in early 2020 brought with it many social, political, and economic dislocations and pressures. These changes and stresses included and fostered adjustments in business law and the work of business lawyers. This article draws attention to these COVID-19 transformations as a socio-legal reflection on business lawyering, the provision of legal services in business settings, and professional responsibility in business law practice. While business law practitioners, like other lawyers, may have been ill-prepared for pandemic lawyering, we have seen them rise to the occasion to…

The business news this week was just lousy with reports on the Tesla trial currently ongoing in Delaware, and in particular, with reports on the testimony of Elon Musk (which, disappointingly, appears to have been less inflammatory than his depositions).  

The basic set up, of course – as I previously blogged – is that Musk championed Tesla’s acquisition of SolarCity, a company he founded with his cousins, chaired, and in which he held a substantial stake.  The unaffiliated Tesla shareholders voted in favor of the deal, which would be enough to cleanse it and restore business judgment review if Musk was not a controlling shareholder, but if he was, entire fairness review would follow.  So one of the burning questions at trial – and the one which most of the news reports focus on – is whether Musk, with something like a 22% stake in Tesla at the time, could be considered a controlling shareholder.  And that question, in turn, focuses not just on his voting power, but on his practical control over the company and the board. 

Y’all know that the question of who is a controller is one that has dominated a lot of my thinking recently (my most recent blog post on the subject is here; earlier posts are here, and here, and here, and here, and here, and here, and here), so I do have to observe that in In re Pattern Energy Group Stockholders Litigation, VC Zurn spent a lot of time explaining how one can be a controller – with fiduciary duties that follow – even without any stock ownership at all.  As she put it:

Fiduciary duties arise from the separation of ownership and control.  The essential quality of a fiduciary is that she controls something she does not own.  A trustee need not (and does not) own the assets held in trust; directors need not own stock. Even a third party lender that influences extraordinary influence over a company may be liable for acting negligently or in bad faith.  If a stockholder, as one co-owner, can owe fiduciary duties to fellow co-owners because the stockholder controls the thing collectively owned, surely an “outsider[]” that controls something it does not own owes duties to the owner.  “[I]t is a maxim of equity that ‘equity regards substance rather than form,’” and “the application of equitable principles depends on the substance of control rather than the form[;] it does not matter whether the control is exercised directly or indirectly.”  “[T]he level of stock ownership is not the predominant factor, and an inability to exert influence through voting power does not foreclose a finding of control.”  Thus, “Delaware corporate decisions consistently have looked to who wields control in substance and have imposed the risk of fiduciary liability on that person,” and “[l]iability for breach of fiduciary duty therefore extends to outsiders who effectively controlled the corporation.”

With this foundation, and considering evolving market realities and corporate structures affording effective control, Delaware law may countenance extending controller status and fiduciary duties to a nonstockholder that holds and exercises soft power that displaces the will of the board with respect to a particular decision or transaction.

That’s a point I made in my essay, After Corwin: Down the Controlling Shareholder Rabbit Hole; as I wrote there:

[O]ne of the first things a business law student learns is that even without a formal equity stake, contractual control can be exerted to the point where fiduciary obligations follow.  But all of this just raises the question whether the shareholder aspect of the controlling shareholder inquiry is necessarily doing any work.

Point being, the fact that Musk’s power does not come from his stock holdings alone is not dispositive of this question.  Musk is the kind of figure that boards, and shareholders, might be afraid to buck because he can’t be dislodged – Musk himself testified that Tesla would “die” without him – and he can send Tesla’s stock price tanking with a single tweet.  Imperial CEOs present a difficult case, but those factors are pretty much the basis for treating controlling shareholders differently from just ordinary conflicted boards. 

Or, with apologies to Guth v. Loft, 5 A.2d 503 (Del. 1939), “Musk was Tesla, and Musk was SolarCity.”  

That said, it must be observed that: (1) Plaintiffs can win this case even if Musk is deemed not to be a controlling shareholder, and (2) it’s possible VC Slights won’t have to decide whether Musk is or isn’t.

More under the cut…

I’ve posted on Cuba and business in the past. See here, here, and here, for example.

I have 3,000 pictures of Cuba from my four visits to research and speak on business and human rights. I’ve written three law review articles and met with farmers, judges, lawyers, families of people who have “disappeared,” restaurant owners and others. For the law review articles see, Ten Ethics-Based Questions for U.S. Companies Seeking to do Business in Cuba, The Cuba Conundrum: Corporate Governance and Compliance Challenges for U.S. Publicly-Traded Companies, and You Say Embargo, I Say Bloqueo—A Policy Recommendation for Promoting Foreign Direct Investment and Safeguarding Human Rights in Cuba.

This is a different kind of post. It’s more personal. 

My first visit in 2016 was during the Bienal art festival, where some of the most talented artists in the region had their work featured by the New York Times. I visited some of them in their homes. Later in the trip, I spent time with members of the Florida bar to learn from local lawyers and economists. One lawyer who spoke with us had to move to the US after someone misreported what he…

Tenure-track Law Faculty Position
Chicago-Kent College of Law

Job Description:

Chicago-Kent College of Law expects to hire one or more faculty to join our vibrant and nationally recognized intellectual community. We have hiring needs in a variety of areas, including but not limited to:

• First-Year Subjects, particularly Civil Procedure, Criminal Law, Property, and Torts;
• Upper-Level Subjects, particularly Race and the Law, Commercial Law, Corporate Law, International Law, and Tax Law.

To apply:

While we will be consulting the Faculty Appointments Register (FAR) through the American Association of Law Schools (AALS), we welcome expressions of interest from both entry-level and lateral candidates, which should be directed to lawappts@kentlaw.iit.edu and include a cover letter and CV.

I’m excited to share with BLPB readers that my article, Entrepreneurial Regulatory Legal Strategy: The Case of Cannabis, published in the American Business Law Journal, is now available.  It is one of a series of articles related to a 2020 Symposium on Legal, Ethical, and Compliance Issues in Emerging Markets: Cannabis in the States, sponsored by the Spears School of Business Center for Legal Studies & Business Ethics at Oklahoma State University and the American Business Law Journal.   

Here’s its abstract:

This article develops the concepts of regulatory legal strategy, a resource-based view of government agencies, and regulatory entrepreneurship. These ideas are explored through a case study of the limited (if any) access that legal cannabis-related businesses have to the banking system due to the clash between federal law and laws in those states that have legalized some uses of cannabis. This article argues that regulators’ entrepreneurial regulatory legal strategies can have a material impact on regulated entities and give them a competitive advantage. To demonstrate, this article claims that regulators’ adoption of permissive regulatory legal strategies has facilitated access of some cannabis-related businesses to the banking system. Conversely…

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2022 STETSON BUSINESS LAW REVIEW SYMPOSIUM

WHITE COLLAR CRIME

CALL FOR PROPOSALS

DEADLINE: AUGUST 01, 2021

The Stetson Business Law Review (SBLR) at the Stetson University College of Law invites proposals for its inaugural symposium, which will be held at the college in Gulfport, Florida on Friday, February 25, 2022. The SBLR was founded in the 2019–20 academic year by ambitious students with strong interests in business law following the establishment of the Stetson Business Law Concentration.

SBLR WHITE COLLAR CRIME SYMPOSIUM

The Stetson Business Law Review wants to bring diverse voices and perspectives to sunny Tampa Bay and establish itself as a premier journal for legal issues relating to business law, such as white collar crime. As such, it is seeking submissions from individuals with various experiences and backgrounds, inside and outside the legal field. Quality submissions will be published in this Symposium edition, with authors being invited to participate in this in-person Symposium on white collar crime.

PROPOSAL SUBMISSION PROCEDURE

Proposals should be approximately 250–500 words, double-spaced, and in .docx format. Submissions must be submitted via…

Charleston School of Law in Charleston, South Carolina welcomes applications to fill two fulltime, tenure-track faculty positions. Ideal candidates will show commitment to becoming stellar teachers and passionate, enthusiastic colleagues, who are willing to invest considerable energy and effort in service and institution building by collaborating with the rest of the faculty to achieve excellence at the School of Law. We value candidates with practice experience who will bring the real world of lawyering to the classroom. We also value previous teaching experience, including as adjunct faculty, at a law school or college. However, completion of visiting assistant professor programs, fellowships, Ph.D. degrees, and LL.M. degrees are not pre-requisites. We are looking, instead, for a demonstrated ability to grow into the role of teacher and scholar.

Charleston School of Law is an ABA fully-accredited institution reinvigorating the study of law by offering a rich, comprehensive three-year program rooted in excellence. Our campus is located in the Upper King Street district of historic, downtown Charleston. The Law School was founded in 2003 with a mission to instill the values of public service and professionalism in its graduates. Key goals for the Law School are student success and providing opportunities to historically…

Drake University Law School invites applications from entry level and lateral candidates for tenure-track or tenured Assistant/Associate/Professor of Law positions beginning in the 2022-23 academic year. We are especially interested in candidates with demonstrated interest or experience in Civil Procedure, Tax/Commercial Law/Bankruptcy, Professional Responsibility, Intellectual Property, and Family Law. Applicants must hold a J.D. degree (or the equivalent) and should have a record of academic excellence, substantial academic or practice experience, a passion for teaching, and a record of, or potential for, accomplishment in scholarship. Appointment rank will be determined commensurate with the candidate’s qualifications and experience.

Drake University Law School sustains a vibrant intellectual culture, and Des Moines has been recognized as one of the top ten Best Places to Live (US News) and Best Places for Business and Careers (Forbes), with a robust and growing economy (Wall Street Journal). The Law School features innovative and nationally recognized programs in agricultural law, constitutional law, legal writing, and practical training.

Drake University is an equal opportunity employer and actively seeks applicants who reflect the nation’s diversity. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity or expression, sexual…

Hey all.  For your reading enjoyment, I’ve posted my new paper, Capital Discrimination, forthcoming in the Houston Law Review, to SSRN.  Here is the abstract:

The law of business associations does not recognize gender.  The rights and responsibilities imposed by states on business owners, directors, and officers do not vary based on whether the actors are male or female, and there is no explicit recognition of the influence of gender in the doctrine. 

Sex and gender nonetheless may pervade business disputes.  One co-owner may harass another co-owner; women equity holders may be forced out of the company; men may refuse to pay dividends to women shareholders.

In some contexts, courts do account for these dynamics, such as when married co-owners file for divorce.  But business law itself has no vocabulary to engage the influence of sex and gender, or to correct for unfairness traceable to discrimination.  Instead, these types of disputes are resolved using the generic language of fiduciary duty and business judgment, with the issue of discrimination left, at best, as subtext.  The failure of business law doctrine to confront how gender influences decisionmaking has broad implications for everything from the allocation of capital throughout the financing ecosystem

…