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Joan Heminway

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Professor Heminway brought nearly 15 years of corporate practice experience to the University of Tennessee College of Law when she joined the faculty in 2000. She practiced transactional business law (working in the areas of public offerings, private placements, mergers, acquisitions, dispositions, and restructurings) in the Boston office of Skadden, Arps, Slate, Meagher & Flom LLP from 1985 through 2000.

She has served as an expert witness and consultant on business entity and finance and federal and state securities law matters and is a frequent academic and continuing legal education presenter on business law issues. Professor Heminway also has represented pro bono clients on political asylum applications, landlord/tenant appeals, social security/disability cases, and not-for-profit incorporations and related business law issues. Read More

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On Monday, I had the good fortune to be able to share some of my research and ideas with an international audience (photo above, taken at the European University Institute in Fiesole/Florence, Italy) on Monday.  The topic?  Smart-contracting as an alternative to traditional business contracting. Here’s the nub of what I offered, taken from my abstract (minus the footnotes).

Business transactions have historically been memorialized, if at all, in contracts—legally recognized forms of agreement that, if valid and binding, have the capacity to be enforced through judicial process. These contracts enable business firms to engage in private ordering relative to firm governance, investment activity, business combinations, intellectual property licensing, asset purchases and dispositions, and many other commercial dealings. Contracts have been essential to business governance, finance, and operations for centuries.

The advent of digital commerce has brought many innovations to business transacting. Click-wrap, browse-wrap, scroll-wrap, and sign-in-wrap forms of indicating the acceptance of contractual terms of use on the Internet have become commonplace. As a result, these inventions have been the subject of cases and controversies and related judicial opinions. “The courts in the electronic world search for the functional equivalent of the paper world’s formal requirements of a reasonable…

Many in the business law world have been following the saga involving the adoption of  S.B. 313 by Delaware’s General Assembly last week.  S.B. 313 adds a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL) that broadly authorizes corporations to enter into free-standing stockholder agreements (not embodied in the corporation’s charter) that restrict or eliminate the management authority of the corporation’s board of directors.  See my blog posts here and here and others cited in them, as well as Ann’s post here.

In the floor debate on S.B. 313 last Thursday in the Delaware State House of Representatives, a proponent of the legislation stated that fiduciary duties always trump contracts.  That statement deserves some inspection in a number of respects.  I offer a few simple reflections here from one, limited perspective.

The historical centrality of corporate director fiduciary duties (which were the fiduciary duties referenced on the House floor) is undeniable.  Those who have taken business associations or an advanced business course with me over the years know well that I emphasize in board decision making that the directors’ actions must be both lawful and consistent with their fiduciary duties in order to…

The Corporate Transparency Act is among the most talked about business law topics in the bar communities I frequent. Basic information and guidance can be found in many places, but nuanced treatments are more rare. I offer one of those rare ones up for your review and consideration today.

Entitled The Corporate Transparency Act Is Happening To You and Your Clients: Dealing with the Tsunami, the analysis and guidance comes from Stoll Keenon Ogden PLLC.  More specifically, one of the two co-authors is friend-of-the-BLPB Tom Rutledge.  His work never disappoints.  I urge you to check it out–all 58 pages of it!  There is even a short resource list at the end with links to some of the key public guidance.  I am grateful for Tom and his colleague, Allison, for putting this together.

Further to Ann’s post on Sunday sharing the text of her comment letter on Delaware’s S.B. 313 (and more particularly the proposal to add a new § 122(18) to the General Corporation Law) and my post on § 122(18) last week, I share below the text of my comment letter to the Delaware State House of Representatives Judiciary Committee.  Although Ann and I each got one minute to deliver oral remarks at the hearing held by the Judiciary Committee on Tuesday, 60 seconds was insufficient to convey my overarching concerns–which represent a synthesis and characterization of selected points from my post last week.  The comment letter shared below includes the prepared remarks I would have conveyed had I been afforded additional time.

Madame Chair and Committee Members:

I appreciated the opportunity to speak briefly at today’s hearing. As I explained earlier today, although I am a professor in the business law program at The University of Tennessee College of Law, my appearance before the committee relates more to my nearly 39 years as a corporate finance practitioner, which has included bar work (most recently and extensively in the State of Tennessee) proposing and evaluating corporate and other business…

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As I noted in one of my posts last week, I recently attended the 2024 Law and Society Association Annual Meeting in Denver, Colorado.  CRN46–the corporate and securities law collaborative research network that organizes sessions at the conference–supported a great series of programs at the conference this year.  I was privileged to be able to be a commenting reader for an Author Meets Reader session on Dana Brakman Reiser and Steven Dean’s book For-Profit Philanthropy.  The session was co-sponsored with the tax law collaborative research network (CRN31). 

For-Profit Philanthropy asserts that three for-profit vehicles (LLCs, donor-advised funds affiliated with investment banking entities, and strategic corporate philanthropy activities) operate to decrease donative trust.  They support their conclusion with observations from business entity and tax law.  Their focus is on accountability and transparency.  The story is compelling.  Ultimately, the book offers targeted reform proposals.

Although the panelists’ remarks were not recorded, I scripted out my comments to ensure that I stayed on track.  What I wrote is set forth below.  It represents a rough approximation of what I said (although I always change and add things as I go).

For-Profit Philanthropy represents an important and classic piece of legal…

Like so many others, I have wanted to say a word about West Palm Beach Firefighters’ Pension Fund v. Moelis & Company, 311 A.3d 809 (Del. Ch. 2024).  My angle is a bit different from that of many others.  It derives from my 15-year practice background, my 24-year law teaching background, and my 39-year bar service background.  It focuses on a doctrinal analysis undertaken through a policy lens.  But I want to note here the value of Ann Lipton’s existing posts on Moelis and the related proposed addition of a new § 122(18) to the General Corporation Law of the State of Delaware (DGCL).  Her posts can be found here, here, here, and here.  (Sorry if I missed one, Ann!)  Ben Edwards also published a related post here.  They (and others offering commentary that I have read) raise and touch on some of the matters I address here, but not with the same legislative policy focus.

I apologize at the outset for the length of this post.  As habitual readers know, long posts are “not my style” as a blogger.  This matter is one of relatively urgent legislative importance, however, and I am eager…

I just came back on Sunday from the 2024 Law and Society Association Annual Meeting in Denver.  It was, as always, a stimulating few days.  A number of us business law profs were in attendance.  The corporate and securities law collaborative research network (CRN46) habitually organizes several programs.  This year was no exception.  I was privileged to be featured in two.  But I will say more on my participation in the conference later.

Today, I want to highlight an interesting piece that was presented at the conference during one of the CRN46 paper panels: “The Original Meaning of Equity “ by Asaf Raz (forthcoming in the Washington University Law Review).  The SSRN abstract follows:

Equity is seeing a new wave of attention in scholarship and practice. Yet, as this Article argues, our current understanding of equity is divided between two distinct meanings: on one side, the federal courts, guided by the Supreme Court, tend to discuss equity as the precise set of remedies known at a fixed point in the past (static equity). On the other, state courts—most prominently, in Delaware—administer equity to preserve the correct operation of law in unforeseeable situations (substantive equity). Only the latter…

Transactions: The Tennessee Journal of Business Law recently published the proceedings of the 2023 Business Law Prof Blog symposium, held at UT Law in Knoxville back in October.  The proceedings can be found here.  As is customary, the issue includes articles written by the principal presenters—bloggers from here at the BLPB—and related commentary from UT Law faculty and students.

My contribution to the symposium was a piece called Business Lawyer Leadership: Valuing Relationships.  The abstract is set forth below.

Business lawyers are surrounded by relationships because of the nature of their work. Businesses are relational; business associations law is relational; business lawyering is relational. Business lawyering, in all its manifestations, is a practice steeped in the lawyer’s awareness and management of, as well as their participation in, the layered sets of relationships found in businesses and business associations law.

This article recognizes these important connections between business law practice and relationships. It approaches each of them in turn. The substantial take-away is that a business lawyer can best lead by understanding the inherent value of relationships to business lawyering and leveraging that understanding through focused effort that includes the employment of, among other things, relationship management skills. Relationship…

At Emory Law’s Eighth Biennial Conference on the Teaching of Transactional Skills back in the fall of 2023, I had the privilege of presenting with my UT Law clinical teaching colleague, Brian Krumm.  (Congratulations are due to Brian, who was recently appointed the Interim Director of our Clayton Center for Entrepreneurial Law!)  The title of this post is also the title of our presentation.  An edited transcript of the presentation was recently published by Transactions: The Tennessee Journal of Business Law and can be found here. The abstract is as follows:

In this edited transcript, we explain how each of us–a doctrinal law professor and a clinician–use members of our campus and local communities to help instruct transactional business law students. We each have independently realized that there is a value to sharing these outside business and legal experts with our students. Among other things, we have found that we can bring unique areas of legal and business expertise into our teaching and, at the same time, introduce our students to real-life practice experiences and related simulations. All of this is foundational to law practice. In addition, experiences of this kind are, in our view, increasingly useful and…

Over the years, I have written a number of blog posts here on Memorial Day that honor those who sacrificed their lives for us through national military service.  You can find the last few here, here, and here.  When practicable, I work in something about business law in those posts.

This year, as I contemplated what to write, I also was mired in grading and other teaching-related work.  On my mind throughout was generative artificial intelligence, a hot topic in law school circles and throughout education (and, of course, elsewhere, too).  The full range of benefits and burdens of generative artificial intelligence still remain to be discovered.

I wondered what a generative artificial intelligence tool would draft up as a blog post for Memorial Day.  Then, I thought, why wonder?  Why not give it a whirl?  So, I asked Google Gemini to “[w]rite a short blog post that combines business law with Memorial Day.”  Set forth below is what I got back.

Honoring Heroes, Respecting Rights: Business Law and Memorial Day

Memorial Day is a time to remember the brave men and women who died serving our country. But for businesses, it also presents some legal considerations.