Photo of Joan Heminway

Joan Heminway

Subscribe to Joan Heminway's Posts

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

Starting on the first day of my Advanced Business Associations course, I attempt to tease out the policy underpinnings and theoretical conceptions of entity law and, in particular, corporate law.  This turns out to be a somewhat difficult task, since most students in the course, to the extent that they remember anything at all from their experience in the foundational Business Associations course, are more focused on what a corporation is and does than why we might have one in the first place.  As the semester proceeds and the readings unfold, the students get more comfortable talking about the rationale for certain aspects of the corporate form and why corporate law structures and operating rules promise to achieve the goals of those organizing a firm as a corporation.  But it’s a slow process.

I have to believe that some of my fellow law professors face similar challenges with their students.  I also believe that instructors in other educational settings face analogous difficulties when they incorporate abstract notions into the teaching of more “black letter” (for want of a better term at this point in my day) concepts.  My approach has been to assign readings of primary and secondary material and use classroom discussion…

As many of you know, I teach both traditional doctrinal and experiential learning courses in business law.  I bring experiential learning to the doctrinal courses, and I bring doctrine to the experiential learning courses.  I see the difference between doctrinal and experiential learning courses as a matter of emphasis.  Among other things, this post explores the intersection between traditional classroom-based law teaching and experiential law teaching by analogizing business law drafting to yoga practice principles.  This turned out to be harder than it “felt” when I first started to write it.  So, the post may be wholly or partially unsuccessful.  But I persevere . . . .

I begin by noting that we are, to some extent, in the midst of a critical juncture with respect to experiential learning in legal education.  Some observers, including both legal practitioners and faculty, criticize the lack of experiential learning, noting that legal education is too theoretical and policy-oriented, resulting in the graduation of students who are ill-prepared for legal practice.  Yet, other commentators note that too great an emphasis on experiential learning leaves students without the skills in theory and policy that they need to make useful interpretive judgments and novel arguments for their clients and to participate meaningfully in law reform efforts.  Of course, different law schools have different programs of legal education (something not noted well enough, or at all, in many treatments of legal education).  But even without taking that into account, many in and outside legal education (including, for example, in articles here and here) advise a law school curriculum that merges the two.  I think about and struggle with constructively effectuating this all merger the time.

Now, about the yoga . . . .  Most of you likely do not know that, in addition to teaching law, being a wife and mom, and other stuff, I enjoy an active yoga practice.  As I finished a yoga class on Sunday afternoon, I realized that yoga has something to say about integrating doctrinal and experiential learning, especially when it comes to instruction on legal drafting in the business law area.  Set forth below are the parallels that I observe between yoga and business law drafting.  They are not perfect analogs, but they are, in my view, instructive in a number of ways important to the teaching mission in business law.  The first two bullet points are, as I see it, especially important as expressions of the idea that law teaching is more complete and valuable when it holistically integrates doctrine, policy, theory, and skills.  The rest of the bullets principally offer other insights.

At the request of Tom Rutledge, chair of the American Bar Association Section of Business Law’s Committee on LLCs, Partnerships and Unincorporated Entities (that sure is a mouthful!),  I am passing on the following:

While the dates are still being resolved, this October, 2016, the Committee of LLCs, Partnerships and Unincorporated Entities will again be sponsoring a two-day LLC Institute in Arlington, Virginia. This program brings together more than 100 high-level practitioners and academics to review a variety of issues involving the law of unincorporated business organizations. In recent years presentations have been made by Joan Heminway, Carter Bishop, Dan Kleinberger, Colin Marks, Michelle Harner and Benjamin Means. I think each will vouch for the quality of the program.

We are actively soliciting proposals for panels. If you are working on something, or if there is something you would like to discuss before an audience that I can guarantee will be “hot”, please let me know.

Thanks.

Tom Rutledge
Thomas.rutledge@skofirm.com

Indeed, I can vouch for the program, at which I have presented twice.  There typically is an opportunity presented to write a short piece for Business Law Today, if you are interested.  My contribution from the

Employers and hiring coordinators are busy people.  Like law review editorial boards, they get many more qualified submissions than they need for the openings they have.  One of our challenges in advising students in the job search game is making their submissions stand out.  Of course, personal connections and timing are very helpful in this regard.  But résumés and cover letters also are important and may make a real difference in obtaining interviews and getting desired offers of employment.  

As we settle into the new semester, my unemployed 3L students have begun to seek help from me in their quest to launch their careers post-graduation. One resource I highlight is the BLPB.  Co-blogger Haskell Murray earlier posted some super information about résumés and interviews.  I followed, at his suggestion, with a post on cover letters (and then one on following up with firms that have not initially extended an interview invitation).  This post adds some new details on cover letters that respond to common mistakes I see and questions I have been asked about my earlier post on that topic.

Specifically, I want to describe better the key personalized part of the cover letter–the body of the letter between the introductory and closing paragraphs.  This is the segment of the letter that, if everything else looks and sounds right, calls the applicant out on an individualized basis and holds the promise of positively distinguishing her or him from other applicants.  Here’s what I said about this section of the cover letter in my original post:

The body of the letter is the most important as a matter of content. It is where you get to show that you have what the employer needs and wants for the position. You should rely on any position announcement you have to write this part of the letter. If there is no announcement or other position description, seek information about or rely on your knowledge of the position to identify the employer’s needs and wants. Summarize for yourself from those needs and wants the specific skills and experience being sought by the employer. Then, demonstrate, preferably by example, how you fill these needs and satisfy these wants in a few (no more than three) short paragraphs. Avoid repeating what’s on your resume and refrain from using characterizing adjectives and adverbs. Show the reader that you are a good fit and among the most qualified folks for the job. Don’t just say it.

There’s a lot in that passage!  Note also that the comments to that original post add a bit more on some of these (and other) matters.  Critical embedded messages in the quoted paragraph include the desirability of:

  • presenting customized information that directly addressees the job requirements set forth in the position announcement (or any other manifestations of the prospective employer’s needs and wants);
  • demonstrating, rather than characterizing, the applicant’s “fit” through the information provided;
  • avoiding mere repetition of information included in your résumé; and
  • avoiding the use of unnecessary adjectives and adverbs.

I address each in turn below.

Image013

 

Development Studies Workshop
Organized by the
Banque Populaire Chair in Microfinance of the Burgundy School of Business (Dijon, France)
In collaboration with
BG Foundation (India)
With Support from
VLCC (India)

Theme: Spirituality, Organization and Development
Dates: 28th and 29th October, 2016
Venue: Gurgaon/Delhi (India)

At a time of terrorism, war, and general confusion on human values, there is increasing concern to develop the world in a more sustainable manner. Harmony with nature, ethics, morality and even spirituality is being sought at an individual level, at an organizational level and at the macro level, while continuing the focus on development and making life worth living for all our fellow human-beings. At this juncture, more and more academics and practitioners are turning towards religion to see if some spiritual lessons can be incorporated for an enhanced work-life. At the very least, understanding the spiritual culture of different persons is important to work in global corporations. It is even more important to understand large waves of immigrants and to mentally prepare for their differences in values. The theme of this workshop is therefore relevant to promote human understanding in a globalized world.

A research workshop’s primary aim is to help each other improve our papers so that we can publish in high ranked international journals and specialized books on a topic. For this, we would like to bring together a large diversity of researchers from different backgrounds to focus on a relevant and interesting theme, which is meaningful to the present moment.

Topics

While papers in any of these individual themes is welcome, papers combining two or more elements of spirituality, organization and economic development will be given preference.

Examples of possible topics combining two themes (not exclusive, not exhaustive) to spark your thoughts:

  1. Spiritual Development
    a. Yoga in the workplace
    b. Gandhism and sustainable development
    c. Organizing Ayurvedic health systems
  2. Organizational Development
    a. Organization Leadership and community development
    b. Corporate transformation through Islamic Finance
    c. Managing Conflicts through the Art of Living
  3. Economic Development
    a. Microfinance and Hinduism
    b. Confucianism and development of intellectual property rights
    c. Economics of Spiritual tourism of Christian holy places

Please send abstracts by April 15, 2016 to microfinancechair@escdijon.eu. 

Guidelines for Abstracts (150 to 300 words)

Title of the paper
Author Information: Names, designations and affiliations, current locations (city, country)
Research purpose
Theoretical Background
Research design/methodology/approach
Key results
Impact (on new research or on new practices, policies)
Value added/ Originality

Note

There will be no parallel sessions. A minimum of six and a maximum of fifteen working papers can be presented.
Abstracts will be selected based on conformity to the theme and diversity of origins.
A few people whose abstract is not accepted can opt for being discussants or participants, subject to place availability.

[more below the fold]

Last week, I threatened that I might have outtakes from the the Association of American Law Schools (“AALS”) panel discussion for the Section on Agency, Partnerships, LLCs and Unincorporated Associations, “Contract is King, But Can It Govern Its Realm?”.  The “conversation” between panelists and among panelists and audience members was rich and far-ranging, although much of it was not “new news” to those of us focused on the many legal questions relating to contracts in the unincorporated business associations space.  Here is my brief additional comment on the panel discussion, ex post.  A recording of the session should later be available, for those interested in listening in.

Although most of the discussion was intentionally not scripted (but, rather, organized by a set of questions shared with the panelists in advance), a few of us did have assignments.  I was charged with two key areas of earmarked participation.  First, I accepted an invitation to identify and categorize non-Delaware state law issues at the intersection of unincorporated business association law, contract law, and legislative drafting.  Second, I was invited to comment on my work on the LLC [operating] agreement as contract (or non-contract).  Although each topic is worthy of…

Tomorrow afternoon (as Anne promoted earlier today), I will participate in the annual Association of American Law Schools (“AALS”) panel discussion for the Section on Agency, Partnerships, LLCs and Unincorporated Associations.  The panel discussion this year is entitled “Contract is King, But Can It Govern Its Realm?” and focuses on the contractarian aspects of LLC law.  Here’s the panel description from the AALS annual meeting program:

This program will explore the role of contract in unincorporated associations, with particular emphasis on the LLC and limited partnership forms. In most jurisdictions, the sparse prescriptions in the default rules imply that the parties will draft an operating agreement that reflects the material points of their bargain. For example, Delaware emphasizes that its policy for LLCs and LPs is to give “maximum effect to the principle of freedom of contract.” Modern contract theory, however, raises significant questions about the extent to which any documentation of a transaction can be “complete,” even if sophisticated parties negotiate at arm’s length and attempt to fully reduce their expectations to writing. If complete contracts are indeed an ideal rather than the reality, can legislatures impose default rules (fiduciary or otherwise) to fill the gaps without…

OK.  No more complaining about grading–at least for another few months.  Whew!  I think I am getting too old for this crazy few weeks in December that involve holiday preparations and reading for the purpose of assessment.

This week, as I promised last week, I do want to say a bit more about the exams themselves, however.  I noticed certain patterns of wrong answers this year (some of them common to ones noted in prior years that I have tried in various ways–unsuccessfully–to address in my teaching).  I sent a message to my students that captured those common mistakes.  An edited list of the observations I shared with them about those errors is included below.

  • Management/Control vs. Agency.  Management and control as an entity attribute is not the same as agency. The former involves internal governance–who among the internal constituents of the firm has the power to exercise the firm’s rights and keep it operating, from a legal (and practical) point of view. The latter relates to the firm’s liability to third parties. These two matters are set forth in different rules in each statute we covered in our course last semester. In the corporation, for example–the most complicated firm we studied,

…

Merry Christmas, Law Profs

Greeting cards have not been sent.

The Christmas stress is true.
But I still have one wish to make,
A special one for you:

Merry Christmas, law profs!
We’re on break(?), that’s true.
So I can dream,
And in my dreams,
There’s no more grading to do!
Grading’s ne’er joyful.
There’s always something “new.”
And every day’s a taxing one,
When grades and gifts are due.
The lights on my tree
( . . . Wait–is there a tree?)
Perhaps we’ll buy one today . . . ?!
No logs on the fire,
But I have real desire
To take a break and say
That I wish you Merry Christmas
–Happy New Year too.
I’ve just one wish
On this Christmas Eve:
I wish that grading was through!
I wish that grading was through!!
Merry Christmas, Merry Christmas, law profs.

 

Still grading, and (in the process) reflecting on the line in Marcia Narine’s post from last week on the references to “creepy tender offers” and “limited liability corporations” in her students’  final exam submissions . . . .  I thought I might share today a few of my own favorite outtakes from my students’ Business Associations exams.  I know that the time crunch and the nature of the exam software contribute mightily to the typing errors in student submissions, but on the reading end, some of the answers submitted are just . . . well . . . funny.  As you’ll no doubt note, today’s post focuses mostly on closely held corporations (with one typo relating to limited partnerships).

First , there are, of course, the transposed letters.  Most of these don’t warrant more than a brief mention.  The limited partnership act references to UPLA and RUPLA, instead of ULPA and RULPA fit into this category.  Similar are the inevitable variants of case names (Donahue becoming Danahue, Donahur, and Donaue, etc.). 

Then, there are the many misspelling of fiduciary(ies)–which I have come to believe may just be a hard word to type.  (Or maybe no one actually knows how to spell it.)  Un…