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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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Between the US Supreme Court’s decision to let Newman stand and the Delaware Supreme Court’s Sanchez decision, the intersection of friendship and corporate governance has been a hot topic this past week.  While the commentary has been enlightening, it’s always good to reflect on the primary sources.  To that end, I have collected below a series of what I perceive to be interesting quotes from the relevant opinions as follows (I also included an excerpt from a law review article referencing Reg FD, which has something to say about the extent to which we need to protect insider communications with analysts):

1.  Dirks v. S.E.C., 

2.  United States v. Newman, 

3.  United States v. Salman, 

4.  Delaware Cnty. Employees Ret. Fund v. Sanchez, 

5.  Dirks v. S.E.C. (dissent, excerpt 1),

6.  Dirks v. S.E.C. (dissent, excerpt 2), and 

7.  Donna M. Nagy & Richard W. Painter, Selective Disclosure by Federal Officials and the Case for an Fgd (Fairer Government Disclosure) Regime.

Obviously, Sanchez may be viewed as an outlier here, but perhaps this will spur some creative work on how the standard for director independence might inform the standard for improper tipping or vice versa.

Two weeks ago, I blogged about an interesting new book on bitcoin, the digital currency. I noted that the backbone of bitcoin is the blockchain software that verifies bitcoin transactions.

The Wall Street Journal reports that NASDAQ is testing blockchain technology as a settlement mechanism for trading in the shares of private companies. If the test is successful–and that’s a huge “if” given the need to scale up the software to unaccustomed heights–blockchain could be used to verify that buyers and sellers actually made reported trades. It could potentially eliminate the need for a centralized settlement system.

One more reason for business lawyers to read the Vigna and Casey book and get up to speed on bitcoin.

Last year, I blogged about a Fourth Circuit case, Prousalis v. Moore, which held that the Janus Capital definition of “maker” in Rule 10b-5 did not apply in criminal cases. For those who are interested, a short article on wrote on that topic, “Make” Means “Make”: Rejecting the Fourth Circuit’s Two-Headed Interpretation of Janus Capital, is now available on SSRN.

The paper is to be included in a symposium honoring the late Alan Bromberg, an outstanding securities scholar, as well as a mentor and friend.

In some European countries, bank interest rates have dropped below zero. (See here and here.) That’s right; it actually costs you to put your money in the bank. You put $1,000 in a savings account and the bank promises to pay you, say, $999, in a year.

I came of age in the Gerald Ford/Jimmy Carter years, when annual inflation rates were in the double digits. Whip Inflation Now!  (Yes, children, I’m ancient.) I find it almost unbelievable that nominal interest rate (and bond yields) could drop below zero.

That hasn’t happened in the United States (yet), but what if it did? Set aside the huge macroeconomic issues, and let’s focus on a topic of greater interest to the readers of this blog—the effect on federal securities law, particularly the core notion of what constitutes a security.

The most important case in defining the scope of federal securities law is probably SEC v. W.J. Howey Co., 328 U.S. 293 (1946).  Howey says that an investment is an investment contract, and therefore a security, if people invest money in a common enterprise with an expectation of profits coming from the efforts of others.

The “expectation of profits” part…

Many of you have probably heard of bitcoin, the private digital currency that some mainstream merchants are now accepting. (Rand Paul recently became the first presidential candidate to accept donations in bitcoin.)

Bitcoin was developed by a software programmer who used the pseudonym Satoshi Nakamoto. It is built on cryptography software known as the blockchain, which both issues the currency and authenticates transactions using it.

If you haven’t heard of bitcoin or you don’t know much about it, I strongly recommend an interesting, informative new book : The Age of Cryptocurrency: How Bitcoin and Digital Money are Challenging the Global Economic Order, by Paul Vigna and Michael J. Casey.

Vigna and Casey are reporters for the Wall Street Journal. I think they’re a little too optimistic about the future of digital currency, but their book is an excellent non-technical introduction to the bitcoin phenomenon and the blockchain software that underlies it. The book isn’t limited to bitcoin; Vigna and Casey talk about other digital currency. They also discuss other potential applications for the blockchain software, such as gambling, self-enforcing “smart” contracts, and currency exchange.

The book’s discussion of regulatory issues is limited. If you’re looking for a discussion…

As most of you know, this year’s U.S. News rankings of law schools are now available. I’m not a big fan of those rankings. I don’t think they’re a particularly meaningful way of comparing law schools. They sometimes provide a laugh or two, as when a dean disparages the rankings while pointing to his or her school’s rise in the rankings as a sign of successful decanal leadership. But no student should be choosing a law school based on those rankings.

However, the rankings are fun to play with from time to time, and here’s one example for your amusement.

Most of the top 100 law schools in the rankings are affiliated with universities that are ranked in the U.S. News rankings of national universities. Everything else being equal, one would expect a law school’s ranking to be comparable to that of its university, and many are. Yale is the top-ranked law school (an obvious mistake in this Harvard grad’s opinion); its university ranking is number 3. But that’s not always the case; many of the law school rankings are significantly different from the rankings of their universities.

I computed a comparison score for each of the top…