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Joshua Fershee

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Joshua Fershée, JD, became the 11th dean of the Creighton University School of Law on July 1, 2019. Fershée previously served as associate dean for faculty research and development, professor of law, and director of LLM programs at West Virginia University College of Law.

Earning a bachelor’s degree in social science from Michigan State University in 1995, Fershée began his career in public relations and media outreach before attending the Tulane University School of Law, graduating magna cum laude in 2003 and serving as editor in chief of the Tulane Law Review. He worked in private practice at the firms of Davis Polk & Wardell in New York and Hogan & Hartson, LLP, in Washington, D.C., before joining the legal academy. Read More

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The meme below has been going around about the different framing for medical school and law school. I get why it is kind of amusing, but it is mostly rather upsetting because it resonates too readily with too many people.

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Although that has never been the institutional approach anywhere I have been, I will concede that there are at least some faculty members (and plenty members of the bench and bar) who think this way about law school and the legal profession. 

When I became a dean, I decided to do it, in part, because of how much I believe in the legal profession and what we are charged to do.  I believed, and I continue to believe, that lawyers are there to help people in what is often their worst of times.  Even when it is not bad, it is still usually a very significant time.  At the risk of being cliché, that means our jobs come with great power and responsibility. 

Despite what you may hear, our law students today are capable, smart, and caring.  They may not view the world the way we did, but we didn’t view the world the same as our predecessors, either.  There…

Greetings from SEALS, where I've just left a packed room of law professors grappling with some thorny issues related to ChatGPT4, Claude 2, Copilot, and other forms of generative AI. I don't have answers to the questions below and some are well above my pay grade, but I am taking them into account as I prepare to teach courses in transactional skills; compliance, corporate governance, and sustainability; and ethics and technology this Fall.

In no particular order, here are some of the questions/points raised during the three-hour session. I'll have more thoughts on using AI in the classroom in a future post.

  1. AI detectors that schools rely on have high false positives for nonnative speakers and neurodivergent students and they are easy to evade. How can you reliably ensure that students aren't using AI tools such as ChatGPT if you've prohibited it?
  2. If we allow the use of AI in classrooms, how do we change how we assess students?
  3. If our goal is to teach the mastery of legal skills, what are the legal skills we should teach related to the use of AI? How will our students learn critical thinking skills if they can

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Depending on who you talk to, you get some pretty extreme perspectives on generative AI. In a former life, I used to have oversight of the lobbying and PAC money for a multinational company. As we all know, companies never ask to be regulated. So when an industry begs for regulation, you know something is up. 

Two weeks ago, I presented the keynote speech to the alumni of AESE, Portugal’s oldest business school, on the topic of my research on business, human rights, and technology with a special focus on AI. If you're attending Connecting the Threads in October, you'll hear some of what I discussed.

I may have overprepared, but given the C-Suite audience, that’s better than the alternative. For me that meant spending almost 100 hours  reading books, articles, white papers, and watching videos by data scientists, lawyers, ethicists, government officials, CEOs, and software engineers. 

Because I wanted the audience to really think about their role in our future, I spent quite a bit of time on the doom and gloom scenarios, which the Portuguese press highlighted. I cited the talk by the creators of the Social Dilemma, who warned about the dangers of social…

If you follow me on LinkedIn, you know that I posted almost every day in May for Mental Health Awareness Month.
 
Last week,  I had the opportunity to discuss mental health and well being for an AmLaw 20 firm (one of my coaching clients) that opened the presentation up to all of its legal professionals. Hundreds registered. Too often, firms or companies focus on those with the highest salaries. As a former paralegal, I know how stressful that job can be. And I know I could never have done my job as a lawyer without the talented legal professionals who supported me.

Here are some scary statistics that I shared from the most recent ALM Mental Health and Substance Abuse Survey.

If you’re a law firm leader or work with legal professionals in any capacity, please read the report and take action. If you can’t get rid of the billable hour (which would solve a lot of issues), think about how you allocate work, respond to unreasonable client demands, and reward toxic perfectionism and overwork. 

✅ 71% of the nearly 3,000 lawyers surveyed said they had anxiety

✅ 45% said their morale has not changed since the pandemic

✅ 38%

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I'm excited to announce this new position. It's particularly timely as just this morning, I had breakfast with venture capitalists, founders, and others in the tech ecosystem nurtured and propelled by the founders of Emerge Americas. This is a great time to be in Miami. Here are the details.

The University of Miami School of Law seeks to appoint an Inaugural Law & Technology Resident Fellow.  

This will be an exciting opportunity as the Fellow will join a vibrant community of scholars and practitioners working at the intersection of law and technology. Miami-Dade County and the surrounding Tech Hub is enjoying a dramatic expansion in technology-related startups and finance.  MiamiLaw has an established J.D. degree concentration in Business of Innovation, Law, and Technology (BILT). Faculty have set up numerous technology-related programs including Law Without Walls (LWOW) and the We Robot conference.

MiamiLaw currently offers courses in: AI and Robot Law; Blockchain Technology and Business Strategies; Digital Asset and Blockchain Regulation; Digital Transformation Services: Business & Legal Considerations; Dispute Resolution; Technology and The Digital Economy; E-Sports; Electronic Discovery; Genomic Medicine, Ethics and the Law; Intellectual Property in Digital Media; Introduction to Programming For Lawyers; NFTs: Legal and Business Considerations…

A few months ago, I asked whether people in the tech industry were the most powerful people in the world. This is part II of that post.

I posed that question after speaking at a tech conference in Lisbon sponsored by Microsoft. They asked me to touch on business and human rights and I presented the day after the company announced a ten billion dollar investment in OpenAI, the creator of ChatGPT. Back then, we were amazed at what ChatGPT 3.5 could do. Members of the audience were excited and terrified- and these were tech people. 

And that was before the explosion of ChatGPT4. 

I've since made a similar presentation about AI, surveillance, social media companies to law students, engineering students, and business people. In the last few weeks, over 10,000 people including Elon Musk, have called for a 6-month pause in AI training systems. If you don't trust Musk's judgment (and the other scientists and futurists), trust the "Godfather of AI," who recently quit Google so he could speak out on the dangers, even though Google has put out its own whitepaper on AI development. Watch the 60 Minutes interview with the CEO of…

Continuing ongoing coverage of the case challenging FINRA's constitutional status, we have some new developments.  The plaintiffs have filed an Amended Complaint.  The United States has also intervened in the case to defend the constitutionality of the securities laws.

Lamentably, the Amended Complaint does not cite to Supreme Risk.   I can understand why they would not want to cite me.  Although the article discusses the possibility of their types of claims at length and characterizes them as a colorable risk with the current Supreme Court, it also points out that they might trigger a financial crisis if they win.  That being said, they cite many of the same people I cited in my article.  

Although I haven't spent much time sitting with the Amended Complaint, I saw a few things that struck me as just plain wrong immediately. 

Let's take one of their jurisdictional allegations.  To deal with the earlier motion to dismiss, the amended complaint tries to detail much more of FINRA's connection to Florida.  It alleges that "FINRA also funds, operates, and conducts business in Florida through its Investors Rights Clinic that is located in this state."  This struck me as completely untrue.  The Clinic…

Last year, I covered a lawsuit challenging FINRA's constitutional status and the top-notch lawyers FINRA hired to defend it.  Since then, FINRA has filed its motion to dismiss.  You can read it yourself here if you're interested.  The plaintiffs have until January 30th to respond.

My sense after reading it is that FINRA would prefer to shift the focus off itself and keep the court's attention on the plaintiffs' tattered regulatory history.  The initial robust defense argues that the case should be dismissed for purported jurisdictional, venue, and standing flaws.   The first seventeen and a half pages of the motion to dismiss focus on these arguments and a review of the plaintiffs.  As a matter of litigation strategy, taking these shots early makes sense to me.  If the arguments succeed, they'll knock the case out entirely.

The final seven pages make the case for FINRA's constitutional status.  It argues that:  (1) FINRA is a private entity exempt from separation of powers or appointments clause issues; and (2) that no non-delegation doctrine violation has occurred because the SEC supervises FINRA.  

It'll be interesting to see how these arguments hold up, if Judge Scriven ever reaches them.  On the whole, the arguments so…

About a month ago, I covered a lawsuit challenging FINRA's constitutional status.  A review of the docket since that time reveals motions for two Gibson Dunn lawyers to appear on behalf of FINRA, Amir C. Tayrani and Alex Gesch.  FINRA's Answer in the matter is set to be filed on December 12th.

What conclusions can be drawn from FINRA's decision to bring the Gibson Dunn team out for the matter?  At the very least, a review of Tayrani's resume shows that FINRA takes the challenge seriously.  Tayrani's biography states that he has briefed 21 cases on the merits at the Supreme Court and lists some standout wins, including:

  • Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338 (2011):  Decision decertifying the largest employment-discrimination class action in history.
  • Citizens United v. FEC, 558 U.S. 310 (2010):  Landmark campaign-finance ruling recognizing the First Amendment right of corporations to make expenditures in support of political candidates.

Given the current composition of the Supreme Court, FINRA is likely making the right decision to invest heavily in its defense early on in this matter.  When I wrote about the risk posed by these kinds of challenges in Supreme Risk, I highlighted the…

I've often been skeptical about how vigorously regulatory groups will police their members.   A recent membership revocation from the CFP Board showed little tolerance for one financial services professional's failure "to treat fellow professionals and others with dignity, courtesy, and respect in violation of Standard A.7 of the Code of Ethics and Standards of Conduct (Code and Standards). " 

That rule provides that "A CFP® professional must treat Clients, prospective Clients, fellow professionals, and others with dignity, courtesy, and respect."  What does that mean?  Well, I can tell one thing the CFP Board thinks it requires you not to do.

The public release details how David R. Nute of Sequim, Washington responded to a client who asked about dropping some documents off in person: 

a former prospective Client, who submitted a written grievance to CFP Board, asked Mr. Nute if she could drop off copies of documents needed for a potential transaction in person at his office, rather than transmit them electronically. When Mr. Nute responded that his time was “too valuable” to make the trip to his office to pick up the documents, the former prospective Client sent him an email stating that she no longer desired

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