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I had planned to blog about the UN Forum on Business and Human Rights this week, but my head is overflowing with information about export credits, development financing, a possible international arbitration tribunal, remarks by the CEOs of Nestle and Unilever, and the polite rebuff to the remarks by the Ambassador of Qatar by a human rights activist in the plenary session. Next week, in between exam grading, I promise to blog about some of the new developments that will affect business lawyers and professors. FYI, I apparently was one of the top live tweeters of the Forum (#bizhumanrights #unforumwatch) and gained many valuable contacts and dozens of new followers. 

In the meantime, I recommend reading this great piece from the Legal Skills Prof Blog.  As I prepare to teach BA for the third time (which I hear is the charm), I plan to refine the techniques I already use and adopt others where appropriate. The link is below.

https://www.businesslawprofessors.com/legal_skills/2014/12/teaching-transactional-skills-in-business-aassociations/

I recently read a very interesting article on legal education, The MIT School of Law? A Perspective on Legal Education in the 21st Century, by Daniel Martin Katz, scheduled to appear in the 2014 U. Ill. L. Rev. 

Katz, an associate professor at Michigan State, considers the impact of the information revolution and changes in the market for legal services on legal education. He considers how a hypothetical law school might market itself and its students. The key, according to Katz, “is to stop trying to be the ‘50th or 100th best Harvard and Yale’ and instead to concentrate on outflanking these and other institutions by becoming leaders in law’s major emerging employment sectors.” Rather than consider how to incrementally change existing law schools, Katz tries to work backward from what he thinks the future market for lawyers will be like to how a law school should be structured to serve that market. Not surprisingly, Katz concludes that knowledge of technology, math, engineering and science will be important for future lawyers—thus, the MIT School of Law in the article’s title.

I’m a little late getting to this, but it’s a very interesting, provocative article—well worth reading. Katz’s article is…

This is the time of year when we craft exam questions and grading grids in anticipation of exams.

Aside from Teaching Law by Design (a fabulous resource that I recommend for all new teachers as a great continuing resource for even those grizzled from years in the trenches), I have used few formal resources to guide my exam writing and grading process. Fortunately, I work with creative, collaborative and generous colleagues who all shared lots of samples and tips when I first started writing exams.  Before committing myself to my Corporations exam this year, I decided to see what is out there to guide exam construction and grading. Finding little that was useful on SSRN or Westlaw, I turned to a broader search, which brought me to a general test instruction guideline produced by Indiana University, aptly titled: How to Write Better Tests.  It had the following information regarding essay exams that serve as a useful reminder about why we are so meticulous in constructing our grading rubrics and creating grading schemes that, to the greatest extent possible, reduce our individual biases.

Consider the limitations of the limitations of essay questions:

1. Because of the time required to answer

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Turkey_0

Happy Thanksgiving you all!  With my co-blogger colleagues here on the BLPB writing various Thanksgiving posts on retail-related and other holiday-oriented business law issues (here and here), I find myself in a Thanksgiving-kind-of-mood.  I honestly have so much to be thankful for, it’s hard to know where to start . . . .  But apropos of the business law focus of this blog, I am choosing today to be thankful for my students.  They make my job really special.

This semester, I have been teaching Business Associations in a new three-credit-hour format (challenging and stressful, but I have wanted to teach Business Associations in this format for fifteen years) and Corporate Finance (which I teach as a planning and drafting seminar).  I have 69 students in Business Associations and ten in Corporate Finance.  I have two class meetings left in each course.

The 69 students in Business Associations have been among the most intellectually and doctrinally curious folks to which I have taught this material.  I have talked to a lot of them after class about the law and its application in specific contexts.  Two stayed after class the other day to discuss statutory interpretation rules with me…

The federal government has a limited amount of money available for student financial aid. Many people believe the size of that financial aid pot should be increased. That may be true but, until that happens, the government should try to allocate the limited funds it has as efficiently as possible. So I ask, should the government be giving that money to law students?

I have great respect for my profession. I think lawyers serve an extremely important function. I’m a strong believer in individual liberty and many of our personal liberties have been preserved through the law and the efforts of lawyers. But it’s hard to argue that the most important issue in the United States today is a shortage of lawyers.

We need more scientists, engineers, mathematicians, and primary care physicians. So why is the government paying for students to major in fields like political science, sociology, and law, just to name a few? Wouldn’t we be better off allocating more money to math and the hard sciences, to give students an incentive to move into those areas? (Or, since many students aren’t prepared to move into those areas, perhaps some of that money needs to be used to…

In June 2014, the Supreme Court decided Fifth Third Bancorp v. Dudenhoeffer holding that fiduciaries of a retirement plan with required company stock holdings (an ESOP) are not entitled to any prudence presumption when deciding not to dispose of the plan’s employer stock.  The presumption in question was referred to as the Moench presumption and had been adopted in several circuits.  You may have heard of these cases as the stock drop cases, as in the company stock price crashed and the employee/investors sue the retirement plan fiduciaries for not selling the stock.  The Supreme Court opinion didn’t throw open the courthouse doors for all jilted retirement investors, and limited recovery to complaints (1) alleging that the mispricing was based on something more than publically available information, and also (2) identifying an alternative action that the fiduciary could have taken without violating insider trading laws and that a prudent fiduciary in the same circumstances would not have viewed as more likely to harm the fund than to help it.

The Supreme Court in Fifth Third recognized the required interplay between ERISA and securities laws stating:

 [W]here a complaint faults fiduciaries for failing to decide, based on negative inside information, to

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As a relatively new parent, I have been amazed at the insatiable curiosity of our son (19-months old). Like most parents, I think my son is special, but I see this curiosity in most children around his age. These young children want to investigate everything and will try anything. They make a lot of mistakes, but they are constantly learning and they seem to love learning.

Curiosity comes quite naturally. Obedience, however, needs to be taught. 

As a professor, I wish I could bottle my son’s curiosity and feed it to my students.

As a parent, I wish my young son obeyed as well as (most of) my students do. 

But I wonder, do we sometimes trade curiosity for obedience? Sir Ken Robinson has spoken about the problem of schools killing creativity. (Creativity and curiousity are related, I think). As a parent and as a professor, his talk is challenging.

If you are not prepared to be wrong you will never come up with anything original…we are now running national education systems where mistakes are the worst things you can make. We are educating people out of their creative capacities…Picasso once said this, he said that “all children are born

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Understandably, business law professors get upset when people who should know better- judges for example- mischaracterize LLCs. I say we should be even more angry at the law clerks drafting the opinions. Many judges had no exposure to LLCs in law school but clerks graduating today certainly have. 
 
Given the ubiquity of LLCs now, I was surprised to learn that among the many outstanding CALI (Computer-Aided Legal Instruction) lessons, there are none on LLCs. (Hat tip to co-blogger Steve Bradford- my students love him now). I have volunteered to work on at least one and maybe more in the coming months. I canvassed some colleagues for their must-haves for these LLC lessons. In no particular order, here’s the current list:
 

1) Difference between LLCs, corporations and partnerships 

2) Del. and ULLCA coverage of fiduciary duties, and especially the issue of contractual waiver and default 

3) Ease of formation
 
4) Expense of formation
 
5) Ease of maintenance    
 
6) Expense of maintenance
 
7) Restrictions re. business purpose or activity
 
8) Continuity of life/limitations on existence
 
9) Label for/characteristics (incl. transferability) of ownership interests
 
10) Restrictions re. owners (number, type, or other)
 
11) Authority to

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About four years ago, despite decades of actively avoiding the idea, I started running. I am no Forrest Gump, but I run 3.5 miles on a reasonably regular basis– usually four or five times a week, sometimes more, and rarely less.   My primary running locations, North Dakota and then along the Monongahela River in West Virginia, are both quite windy.  The North Dakota winds so are significant, that they can mimic hills, which is what allowed cyclist Andy Hampsten to train for hills in “one of the flattest areas in the world.” 

I do a lot of out-and-back runs – out 1.75 miles and back along the same route.  During such runs, I often notice a similar phenomenon: I may not have any idea it’s windy if the wind is at my back when I start running.  When I get to my turnaround, though, I find a stiff wind in my face. This happens enough that I should probably figure out it is windy before I get to the turnaround, especially since it can lead to a faster pace on the way out, but I still rarely notice.  I just think I’m having a good pace day.

In contrast, it’s pretty hard to miss when the wind is in your face.  Everything feels hard. Everything feels sluggish and slow.  And it feels like, all of a sudden, you have barriers in your way. 

During these runs, it often makes me think about how many other places (in the figurative sense) this happens.  We all have our challenges, and we often have much to overcome.  But some have more challenges than others.  Because our individual challenges are real, it can be easy to miss that we may have fewer challenges than other people have.  

The things that are barriers to our goals are sometimes obvious to us. For example, as those in the current job hunt for a law professorship likely know, a lack of a top-14 law degree can be a significant limit on the number of options one might have entering the legal academy.  It certainly felt like a barrier to certain jobs when I was on the market, anyway. 

Because of that, it would be easy to discount other benefits I have because of who I am. I grew up in a safe neighborhood with good schools.  I am a white male, which means people have expectations for me that are different than others.  There is a level of presumed competence.  And, comparatively, presumed authority and ability.  If there’s no more text visible, please click below to read the whole post. 

As some of you know, I have been a defender (although perhaps not a staunch one) of student-edited law reviews as a good learning experience for students.  I have worked with students in ways that I really have enjoyed over the years.  I also have had some lousy experiences.  But even I admit that between the overwhelmingly negative blog commentary  (to which I now add), including posts here and here by Steve Bradford here on the BLPB, and the experiences I relate here, I am having trouble sustaining my support for student-edited journals . . . .