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Benjamin P. Edwards

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Benjamin Edwards joined the faculty of the William S. Boyd School of Law in 2017. He researches and writes about business and securities law, corporate governance, arbitration, and consumer protection.

Prior to teaching, Professor Edwards practiced as a securities litigator in the New York office of Skadden, Arps, Slate, Meagher & Flom LLP. At Skadden, he represented clients in complex civil litigation, including securities class actions arising out of the Madoff Ponzi scheme and litigation arising out of the 2008 financial crisis. Read More

The people at New Media Rights, a non-profit affiliated with the California Western School of Law,   have developed an interesting new legal app called The Fair Use App.  It is designed to help filmmakers and video editors understand the fair use doctrine in U.S. copyright law. The app runs users through a series of questions about their use of others’ content and explains how their answers to each question affect the availability of the fair use doctrine. In effect, it’s a digital flowchart.

Fair use is a complicated, multi-factor analysis, so there is no final yes-no answer. But this app would be a good start for a filmmaker trying to understand the law.

The app’s not perfect. For example, at one point, it asks if the content being used is in the public domain, with no explanation of what that means. I doubt most lay people would know exactly what that means. And I’m not a copyright expert, so I can’t say whether it’s substantively correct on all points. But, assuming it is, it’s a good tool. Consulting with an experienced copyright lawyer would be better, but most of the people using this app wouldn’t consult a lawyer…

Hi, my name is Steve, and I’m an academic.

I’m paid to express my opinions. The more I publish, the  greater the rewards: tenure, promotion, raises, summer research grants, chaired professorships, conference invitations.

My situation isn’t unique. The reward structure is the same at most law schools and in the rest of higher education. The more you write, the more you get.

I once asked a dean (who shall remain nameless) what would happen if a faculty member received a summer research grant and the research didn’t pan out, didn’t produce anything worth publishing. The dean said that never happens because you can  find an outlet to publish almost anything.

But do we really need all that “scholarship”? Would the world be any worse if I and other academics spent more time thinking and crafting a few high-quality articles that really added to the discussion, instead of trying to keep up the stream of constant publication? Would law and legal education suffer if we cut the number of law review articles in half?

Incentives are part of the problem. I have been in law teaching for 29 years, and my sense is that the pressure to publish is increasing. Quantity…

I have been reading Paul Mahoney’s brilliant new book, Wasting a Crisis: Why Securities Regulation Fails (University of Chicago Press 2015). You should too.

Mahoney attacks the traditional market failure rationale for our federal securities laws. He argues that contrary to the traditional narrative, market manipulation was not rampant prior to 1933 and the securities markets were operating reasonably well. Mahoney concludes that “‘lax’ regulation was not a substantial cause of the financial problems accompanying the Great Depression and . . . most (although not all) of the subsequent regulatory changes were largely ineffective and in some cases counterproductive.”

Mahoney looks at state blue sky laws, the Securities Act, the Exchange Act, the Public Utility Holding Company Act, and, regrettably only briefly, the Investment Company Act. He concludes by discussing the Sarbanes-Oxley and Dodd-Frank Acts. He discusses the rationales for each regulation and whether those rationales are supported by the facts. Mahoney backs up his argument with a great deal of empirical research, some of which has appeared in earlier articles. Warning: Some of that discussion may be a little difficult for those without a background in regression analysis or financial economics, but you can follow Mahoney’s conclusions without understanding…

I was traveling to the annual CALI Conference on Law School Computing when this happened, but I thought I would share it, in case you haven’t seen it yet.

Two police officers showed up at the annual meeting of PNE Wind AG, a German company focusing on renewable energy. They sealed the room where votes were tabulated and seized documents, apparently to investigate vote-tampering charges filed by two of PNE Wind’s supervisory board members.

Not surprisingly, the company’s stock price dropped more 13% in the two days following the meeting. It rebounded afterward but, curiously, has dropped another 6% in the week since authorities announced that no further investigation was warranted. But a few other things have been going on in Europe in the last week, so the second drop may not have anything to do with the investigation.

Put this at the top of your list of things that can go wrong at the annual meeting.
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I was at the CALI meeting to speak on How to Ruin a Presentation with PowerPoint. All the CALI presentations will be posted on YouTube, so I’ll let you know when links are available, if you want to see

It looks like fee-shifting bylaws are going to have a very short life, at least in Delaware.
About a year ago, the Delaware Supreme Court upheld a loser-pays bylaw that required the unsuccessful party in any intracorporate litigation to pay the costs and attorneys’ fees of the prevailing party. The case, ATP Tour, Inc. v. Deutscher Tennis Bund, involved a non-stock corporation, but nothing in the case indicates the result would not apply to ordinary corporations, and the relevant statutory rules make no distinction between non-stock and stock corporations.

However, the Delaware General Assembly has passed, and the Governor is almost certain to sign, a bill that rejects loser-pay provisions in either the bylaws or the certificate of incorporation.

The bill, SB 75, amends Del. § 102 to provide:

(f) The certificate of incorporation may not contain any provision that would impose liability on a stockholder for the attorneys’ fees or expenses of the corporation or any other party in connection with an internal corporate claim, as defined in § 115 of this title.

It adds the following language to Del. § 109(b):

The bylaws may not contain any provision that would impose liability on a stockholder for the attorneys&rsquo…

I just read an interesting essay on the debate about creating “practice-ready” graduates: Robert J. Condlin, “Practice Ready Graduates”: A Millennialist Fantasy, 31 TOURO L. REV. 75 (2014), available on SSRN here.

Condlin rejects the notion of making law school graduates practice-ready. He argues that the practice-ready movement is a mistaken response to the downturn in the market for lawyers and that law schools cannot and should not make law students practice-ready. Regardless of your position on this issue, Condlin’s article is definitely worth reading.

Non-lawyers think lawyers love to talk, that it’s almost impossible to get them to shut up. Unfortunately for those of us in legal education, that stereotype doesn’t fit most law students.

It is difficult to get many law students to talk in class. Discussions are often dominated by just a few students, known to their peers as “gunners.” Many law students, including some of the brightest, won’t participate in class unless you force them to.

I have struggled with this issue throughout my teaching career, fighting to get all of my students actively involved in class, because the research clearly shows that active participants learn more.

Jay Howard, a sociology professor and dean at Butler University, has just written a book I wish I’d had when I began teaching. The book, Discussion in the College Classroom: Getting Your Students Engaged and Participating in Person and Online, is aimed at professors teaching undergraduates, but much of what Howard has to say applies equally to law students.

According to Howard, the problem arises in part from a mismatch of norms—students and professors have different expectations.

  • Professors want students to pay attention. Students pay what Howard calls “civil attention,” showing external cues

…

In Flanders fields the poppies blow
Between the crosses, row on row,
That mark our place; and in the sky
The larks, still bravely singing, fly
Scarce heard amid the guns below.

We are the Dead. Short days ago
We lived, felt dawn, saw sunset glow,
Loved and were loved, and now we lie
In Flanders fields.

Take up our quarrel with the foe:
To you from failing hands we throw
The torch; be yours to hold it high.
If ye break faith with us who die
We shall not sleep, though poppies grow
In Flanders fields.
          -John McCrae, In Flanders Fields

Today is Memorial Day. Before you run to the beach or the park, or wherever you’re spending the holiday, take a moment to remember those dear soldiers who have fallen. They won’t be going to the beach or park today. They gave their lives so you could live.

You may think, as I do, that some of our more recent battles were better not fought, but that doesn’t make the sacrifices of the soldiers who fought in them any less noble or honorable. The loss of life is even more tragic or regrettable when stupid politicians needlessly…

You may recall my blog post this fall about the Delaware Chancery Court opinion in In Re Nine Systems Corporation Shareholders Litigation. That case discusses what happens when a self-dealing transaction results in a fair price, thus causing no damage to the corporation, but the process followed was fair. The court held that the plaintiff could still recover attorneys’ fees and costs. I noted that the only people likely to be satisfied with that result were plaintiffs’ attorneys. (It makes no difference to the plaintiffs in the case because they had a contingent fee agreement with their attorneys-no recovery, no attorneys’ fees to be paid.)

The Chancery Court just entered its order awarding plaintiffs’ counsel, Jones Day, $2 million dollars in attorneys’ fees and expenses. That’s right, the attorneys get $2 million even though, as the Vice Chancellor notes, “the quantifiable benefit obtained in this litigation was $0.” Thus, the defendants have to pay $2 million to counsel for helping the court determine that nothing they did harmed the corporation or its shareholders.

It could have been worse; plaintiffs’ counsel asked for $11 million.

I’m afraid that this opinion will give plaintiffs’ attorneys an incentive to search for problems…