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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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I previously mentioned a conference on crowdfunding being held at the University of Cincinnati on March 28, and promised to provide a link to the conference announcement when it became available. It’s here.

This should be an interesting conference; some of the leading experts on securities crowdfunding are going to be speaking. And it’s not just academics; the list of speakers includes practitioners, regulators, and people from the crowdfunding industry. (I’m speaking, but you can take a coffee break to avoid that.)

If you can’t make it to Cincinnati, the conference will also be webcast. Of course, you’ll miss out on that weird chili and spaghetti concoction that people in Cincinnati eat.

What happens if short sellers of stock are unable to cover because no one has any shares to sell? That’s one of the many interesting issues in the new book, Harriman vs. Hill: Wall Street’s Great Railroad War, by Larry Haeg (University of Minnesota Press 2013). Haeg details the fight between Edward Henry Harriman, supported by Jacob Schiff of the Kuhn, Loeb firm, and James J. Hill, supported by J.P. Morgan (no biographical detail needed), for control of the Northern Pacific railroad. Harriman controlled the Union Pacific railroad and Hill controlled the Great Northern and Northern Pacific railroads. When Hill and Harriman both became interested in the Burlington Northern system and Burlington Northern refused to deal with Harriman, Harriman raised the stakes a level by pursuing control of Hill’s own Northern Pacific.

I’m embarrassed to admit that I wasn’t aware of either the Northern Pacific affair or the stock market panic it caused. I had heard of the Northern Securities antitrust case that grew out of the affair; I undoubtedly encountered it in my antitrust class in law school. (Everything the late, great antitrust scholar Phil Areeda said in that class is still burned into my brain.)

I’m happy…

I have been working on a project involving liability for securities fraud under the Securities Act and the Securities Exchange Act. I’m addressing the possible liability of one particular defendant in one limited context–selling securities pursuant to the crowdfunding exemption in section 4(a)(6) of the Securities Act.

A defendant in that context faces possible civil liability under at least five different antifraud provisions—sections 4(a)(6), 12(a)(2), and 17(a) of the Exchange Act; Rule 10b-5; and section 9 of the Exchange Act. You could actually count that as seven if you counted scheme liability under Rule 10b-5 and section 17(a) separately. And that’s not counting the aiding and abetting provision in section 20(e) of the Exchange Act or possible state law liability.

Those antifraud provisions differ in many ways: the standard of care; the burden of proof; reliance requirements; who may sue; who’s liable as a defendant. Does it really make sense to have a potpourri of antifraud rules applicable to a single defendant in a single transaction?

I can understand why we might want to apply different rules when the SEC is a plaintiff than when a private party is the plaintiff. And I can understand why we might want to…

As my wife, kids, and friends will tell you, I sometimes rant about grammar. I’m going to do that now, so excuse yourself now if that kind of thing bothers you.

Don’t worry. I’m not going to lecture you on splitting infinitives or beginning sentences with conjunctions (neither of which is improper, by the way, but never mind . . . ). My latest concern is not a technical grammatical point, but a simple question of proper English usage.

The past tense of the verb “lead” is spelled “led,” not “lead.”

Napoleon leads the troops into battle. (Present tense)

Napoleon led the troops into battle last week. (Past tense). NOT Napoleon lead the troops into battle last week.

People seem to be using “lead” as the past tense more and more. I have seen it not just in student drafts and blog posts, but in newspapers, books, and other sources edited by people who ought to know better. I’m not sure what the problem is; perhaps people are analogizing to the verb “read.” The present tense and past tense of that verb are the same. Or perhaps they are comparing it to the element “lead,” which is also pronounced “led.”…

CALI, the Center for Computer-Assisted Legal Instruction, holds an annual Conference for Law School Computing that brings together law professors, law librarians, educational technologists, I.T. directors, and others interested in the application of technology in legal education and the law generally. Attendees range from hard-core techies to unsophisticated neophytes looking for new ideas. I have attended several of these conferences and have always found them informative and enjoyable. (Full disclosure: Until recently, I was a member of CALI’s Board of Directors.)

This year’s conference is June 19-21, at Harvard Law School. That’s in Cambridge, Mass., for those who haven’t heard of the school. (Harvard is my alma mater, but they have encouraged me not to tell anyone.) If you’re a lawyer or law professor interested in bringing legal education or the legal profession into the 21st century, or even if you would settle for bringing it into the late 20th century, this is a great conference.

In addition, if you have an idea for a presentation, I would encourage you to submit a proposal. Unlike many conferences, presentations are not limited to invited speakers. Anyone may submit a proposal. Just follow this link, create an account, and click on…

The SEC is taking some flak from crowdfunding proponents for its crowdfunding rules. Sherwood Neiss, one of the early proponents of a crowdfunding exemption, has taken the SEC to task, as has Representative Sam Graves, the chair of the House Committee on Small Business. See also this article.

These critics point out, correctly, that the crowdfunding exemption is too expensive and restrictive. The problem is that the critics are aiming at the wrong target. I’m no SEC apologist; I have criticized its approach to small business and the structure of its exemptions on a number of occasions. But, in this case, it’s not the SEC that deserves the blame. It’s Congress.

Almost everything the critics are concerned about originates in the statute itself, not in the SEC’s attempt to implement the statute. I pointed out the many problems with the JOBS Act’s crowdfunding exemption almost 18 months ago. The unnecessary cost, complexity, and liability issues the critics are currently complaining about are statutory problems.

Yes, the SEC has some discretion to change some of the objectionable provisions, but one should hardly expect the SEC, with no experience whatsoever with crowdfunding, to overrule the express requirements adopted by…

My dear friend, mentor, and colleague John Gradwohl died yesterday. John, the Judge Harry A. Spence Professor of Law, taught on the faculty at the University of Nebraska College of Law for over 50 years. I don’t know what I will do without him around. I know few of you knew John, but it’s your misfortune that you didn’t.

When I came to Nebraska from Dallas 27 years ago, without a friend within 500 miles and without a clue about how to be a legal academic, John virtually adopted me and my family. We stayed at his house when we first visited Lincoln to look for a home. My wife, kids, and I attended family Christmas parties at his house. He took an active interest in my children as they grew up and became adults. The uniform reaction of my children when I told them yesterday that he had died was, “He was such a nice man.”

My office has been next to John’s since I arrived at Nebraska, and we were often in each other’s offices. John shared his knowledge freely and tried to keep me from making stupid academic mistakes. (My usual approach to academic discourse is “Ready…

As Anne Tucker noted, last week was the fourth anniversary of the Supreme Court’s Citizens United decision, striking down as unconstitutional a ban on electioneering expenditures by corporations.

I don’t want to discuss the merits of that decision. I’m not a constitutional expert and many people much more qualified than I have chimed in. Instead, I want to talk about the public reaction to the decision. In my (admittedly limited) experience, non-lawyers react to Citizens United very differently from lawyers.

The Reaction of the Lay Public

The reaction of many non-lawyers is, “Are you nuts? Only people have constitutional rights and corporations aren’t people.” The mere idea that corporations should be treated like natural persons with similar constitutional rights is both hilarious and outrageous. Corporations aren’t people, and only an idiot would think otherwise.

The Reaction of Lawyers

The reaction of many lawyers is quite different. (I’m excluding those lawyers who appear as pundits on talk shows and are expected to overreact.) Many lawyers disagree with the Citizens United decision, but most lawyers don’t consider the idea of giving corporations the same rights as natural persons as completely beyond the pale of reason. The focus of the debate among…

Early this month, the United States
District Court for the Middle District of
Pennsylvania decided Gentex Corp. v. Abbott, Civ. A. No. 3:12-CV-02549,  (M.D.Pa. 10-10-2013).  The outcome of the case is not really objectionable (to me), but some of the
language in the opinion is. As with many courts, this court conflates LLCs and
corporations, which is just wrong.  The
court repeatedly applies “corporate” law principles to an LLC, without
distinguishing the application.  This is
a common practice, and one that I think does a disservice to the evolution of
the law applying to both corporations and LLCs.

I noted this in a Harvard Business Law Review Online article a while back:

Many courts thus seem to view LLCs as close cousins to corporations, and many even appear to view LLCs as subset or specialized types of corporations. A May 2011 search of Westlaw’s “ALLCASES” database provides 2,773 documents with the phrase “limited liability corporation,” yet most (if not all) such cases were actually referring to LLCs—limited liability companies. As such, it is not surprising that courts have often failed to treat LLCs as alternative entities unto themselves. It may be that some courts didn’t even appreciate that fact. (footnotes omitted).

To be…