July 2022

Jürgen Kühling is the chair of Germany’s Monopolies Commission. The following is a hopefully interesting excerpt from a recent interview he did with ProMarket (here).

When the Federal Cartel Office blocks a merger in Germany, the merging parties can seek an exemption from the minister of economic affairs to clear the merger. And we had a case three years ago where companies argued that the merger would lead to sustainable efficiencies that would benefit the economy as a whole in such magnitude that the efficiencies would outweigh the merger’s adverse effect on competition completely. We had concluded that the alleged environmental public benefits were either not demonstrated or ultimately represented self-serving benefits. In general, we think such sustainable benefits that are in the consumers’ interest can already be addressed under the current competition law. All sustainability aspects that consumers do not value lie outside the scope of competition law, in our view, and require regulation.

Kühling then provided some additional details:

As I mentioned before, there was a merger in 2019 that came under ministerial review, which we advised the ministry of economics on as well. After a substantial assessment, we concluded that the merger would not have

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Samuel Sturgis, a 2022 graduate of MC Law, was recenty honored by the Tax Law Section of the Federal Bar Association for his excellent scholarship. Sam received second place in the Donald C. Alexander Tax Law Writing Competition for his paper, “The Wealth Tax–Egalitarian Dream or Utilitarian Nightmare?” A full version of the paper, which Sam is planning to develop for submission to law reviews, is available on the FBA website (here). Sam will enter the Graduate Tax Program at the University of Florida Levin College of Law this fall; they are very lucky to have him! Here is an abstract of his article:

In the Nottingham of literary folklore, the poor starved while the wicked feasted. To survive, ordinary people needed a savior, and they found it in Robin Hood. Taking from the rich feed the poor, the green-clad yeoman emboldened the hopeless and became a hero of the proletariat for centuries to come. Today, the poor face a similar plight—castles and kings have disappeared, but an uncrossable moat seems to be widening between the “haves” and the “have nots.” Ordinary working people need a hero. Instead of Robin Hood, many are beginning to howl for a…

We need to be honest. Most of our students aren’t learning or retaining the information we teach them. If you’re not in academia, you’ve likely attended a a required training or taken a course on your own and you probably can’t fully articulate what you’ve learned or how it applies to what you do daily in your profession. Over the past few months, I’ve been spending time with neuroscientists learning about learning. I’ll pass on some pointers over the next posts to translate how and what we want to teach to how our students or employees actually learn. For example, we all know about the “gunners” in our classrooms or those who beg for the extra point on the exam so that they can maintain their stellar GPAs. But for the most part, adults don’t get motivated through gold stars and report cards in the same way that younger learners do. 

I’ll start with an overview of ten things we need to know about how adults learn. I’ll expand on them in future posts. 

1) Many professors focus on pedagogy, which is based on how children learn and still stick to the teacher-centered approach of learning. The science of adult…

The University of Colorado Law School invites applications from entry-level and lateral candidates for one or more full-time, tenured or tenure-track faculty positions to begin at the start of the 2023-24 academic year. We welcome applications from candidates in all subject areas and at all levels of seniority. However, we have especially strong needs in Health Law, Business/Commercial Law, American Indian & Indigenous Peoples Law, Immigration Law, and Telecommunications & Internet Law. We also have needs in Negotiation/Alternative Dispute Resolution, Race and the Law (broadly construed), Environmental/Natural Resources Law (with an emphasis on Energy Law), International Law, and Evidence. We are also very interested in candidates who can teach classes in the first-year curriculum, especially Tort Law, Criminal Law, and Constitutional Law.  We seek candidates with great potential for, and/or records of, both innovative scholarship and engaged teaching. Candidates must hold a J.D. from an ABA-accredited law school or equivalent degree in a related field.

We strongly encourage applications from people of color, women, individuals with disabilities, LGBTQ people, veterans, and others whose background, experience, and viewpoints would contribute to the diversity of our faculty. The University of Colorado Boulder is committed to building a culturally diverse community of faculty…

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(Some neighborhood children playing duck-duck-goose in our common space on July 4th.)

Recently, I finished philosopher David McPherson’s book The Virtues of Limits published by Oxford University Press this year. While I disagree with McPherson in certain areas, I highly recommend his book. I was reacting to the book with friends and the author before I even completed it. Perhaps it would have been best to refrain from commenting until I had finished, but it was a sign that the book was quite thought-provoking. The book was well-written and accessible, even to a non-philosopher like me. 

Given that this post only has a loose connection to business law, I will place the remainder of my thoughts below the page break. 

UNIVERSITY OF PENNSYLVANIA, THE WHARTON SCHOOL, Philadelphia PA The Legal Studies and Business Ethics Department of the Wharton School, University of Pennsylvania, is seeking applicants for a full-time, tenure-track faculty position at any level: Assistant, Associate, or Full Professor. The appointment is expected to begin July 1, 2023. Information about the Legal Studies and Business Ethics Department and the research expertise of its current faculty may be found at: https://lgst.wharton.upenn.edu.

JOB QUALIFICATIONS: Applicants must have either a JD (or equivalent) or a PhD from an accredited institution or both (expected completion by June 30, 2024 is acceptable). We seek outstanding researchers and teachers with a commitment to business-relevant scholarship. The Department’s faculty hold graduate degrees in a variety of areas, including law, philosophy, sociology, history, psychology, and political science. They teach courses in business ethics and law to undergraduates, MBAs, Executive MBAs, and PhD students.

APPLICATION PROCEDURE: Applications, including a cover letter, a one-page research statement or summary, curriculum vitae, and either a published work or a work in progress, may be submitted online beginning July 1, 2022. We encourage early submission of applications, as they will be reviewed until our deadline of November 1, 2022. Applications should be…

This came in from our student editor and faculty friends at Penn Law:

The University of Pennsylvania Law Review will host its annual symposium on Friday, October 7, 2022, in-person. This year’s topic, “Debt Market Complexity: Shadowed Practices and Financial Injustice,” will explore the rise of increasingly complicated debt structures associated with private equity. We are issuing a call for papers for publication in the Law Review’s corresponding symposium issue.

To submit a paper for consideration, please provide an abstract no longer than 750 words to symposium@pennlawreview.com by July 31, 2022. If selected for publication, completed drafts will be due January 1, 2023. 

The complete call for papers, which includes more detail, is available here.

This looks like a great topic for a program!  I know many of you out there work routinely in the debt space from a variety of perspectives.  I hope you will consider submitting.

Stefan’s Independence Day post is far more erudite than mine.  Kudos and thanks to him for the substantive legal content.  This post covers more of a teaching point–one that I often think about in the background but want to being to the fore here.

I am focused in writing this on things like family reunions, local holiday festivities, grilling out, and fireworks.  It has been a rocky road to the Fourth in these and other aspects this year.  Overlapping causes can easily be identified.  As if the continuing COVID-19 nightmare were not enough . . . .

I will start with COVID-19, however.  I have heard of many who are missing family and other events this weekend because of positive COVID-19 diagnoses, test results, or exposures.  I was sad to learn, for example, that Martina Navratilova had to miss the historic Wimbledon centennial celebration, including the Parade of Champions, yesterday.  But there is more.

The air travel debacles have been well publicized.  Weather, labor shortages, and other issues contribute to the flight changes and cancellations airlines need to make on this very popular travel weekend–expected to set records.  And gas prices have stymied the trips of some by land (again…

Over at Law & Liberty (here), John Berlau has posted a comment on Jarkesy v. SEC, in which the Fifth Circuit recently ruled that “(1) the SEC’s in-house adjudication of Petitioners’ case violated their Seventh Amendment right to a jury trial; (2) Congress unconstitutionally delegated legislative power to the SEC by failing to provide an intelligible principle by which the SEC would exercise the delegated power, in violation of Article I’s vesting of ‘all’ legislative power in Congress; and (3) statutory removal restrictions on SEC ALJs violate the Take Care Clause of Article II.” Jarkesy v. Sec. & Exch. Comm’n, 34 F.4th 446, 449 (5th Cir. 2022). What follows is a brief excerpt from Berlau’s post, but please go read the whole thing.

Critics and proponents of the ruling by the U.S. Court of Appeals for the Fifth Circuit in Jarkesy v. SEC have called revolutionary the new limits it places on federal regulatory agencies’ use of administrative law judges, a core tool of the administrative state…. Jarkesy is indeed revolutionary—both in the jurisprudence it could usher in limiting the power of the administrative state and in its concern for issues involved in the American Revolution.

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UNIVERSITY OF CALIFORNIA, DAVIS SCHOOL OF LAW invites applications from both entry-level and experienced candidates for possibly several positions to begin July 1, 2023. Our hiring goals are flexible, but we have especially strong teaching needs in intellectual property, evidence, and international law, in addition to classes in the first-year curriculum. We seek candidates with scholarly distinction or promise, as well as a commitment to excellence in teaching. Candidates must hold a J.D., Ph.D., or equivalent degree by the date of their application. All candidates must apply through the UC Recruit system at the following link: https://recruit.ucdavis.edu/JPF05036.

For full consideration, applicants should apply by September 1, 2022, although we recommend that you submit your materials at your earliest convenience. We require a cover letter, curriculum vitae, research agenda, writing sample, as well as teaching evaluations and/or transcripts and contact information for three references. Candidates must also include a Statement of Contributions to Diversity, Equity, and Inclusion. Information about the Statement can be found at http://academicaffairs.ucdavis.edu/diversity/equity_inclusion/diversity_statements_writin g/. Please note that we may require further documentation at a future date, including, but not limited to, letters of recommendation, which will be treated as confidential under University of California Policy and…