Teaching

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Bernard Sharfman, a prolific author on corporate governance, has written his fourth article on the business judgment rule. The piece provides a thought-provoking look at a subject that all business law professors teach. He also received feedback from Myron Steele, former Chief Justice of the Delaware Supreme Court, and William Chandler III, former Chancellor of the Delaware Court of Chancery during the drafting process. I don’t think I will assign the article to my students, but I may take some of the insight when I get to this critical topic this semester. Sharfman has stated that he aims to change the way professors teach the BJR.

The abstract is below:

Anyone who has had the opportunity to teach corporate law understands how difficult it is to provide a compelling explanation of why the business judgment rule (Rule) is so important. To provide a better explanation of why this is so, this Article takes the approach that the Aronson formulation of the Rule is not the proper starting place. Instead, this Article begins by starting with a close read of two cases that initiated the application of the Rule under Delaware law, the Chancery and Supreme Court opinions in Bodell v.

A friend of mine is considering teaching his constitutional law seminar based almost entirely on current and future decisions by the President-elect. I would love to take that class. I thought of that when I saw this article about Mr. Trump’s creative use of Delaware LLCs for real estate and aircraft. Here in South Florida, we have a number of very wealthy residents, and my Business Associations students could value from learning about this real-life entity selection/jurisdictional exercise. Alas, I probably can’t squeeze a whole course out of his business interests. However, I am sure that using some examples from the headlines related to Trump and many of his appointees for key regulatory agencies will help bring some of the material to life.

Happy Grading!

Today, I share a quick teaching tip/suggestion.

I taught my last classes of the semester earlier today.  For my Business Associations class, which met at 8:00 am, I was looking for a way to end the class meeting, tying things from the past few classes up in some way.  I settled on using the facts from a case that I used to cover in a former casebook that is not in my current course text:  Coggins  et al. v. New England Patriots Football Club, Inc., et al.  Here are the facts I presented:

  • New England Patriots Football Club, Inc. (“NEPFC”), the corporation that owns the New England Patriots, has both voting and nonvoting shares of stock outstanding.
  • The former president and owner of all of the voting shares of NEPFC, Sullivan, takes out a personal loan that only can be repaid if he owns all of the NEPFC stock outstanding.
  • The board and Sullivan vote to merge NEPFC with and into a new corporation in which Sullivan would own all the shares.
  • In the merger, holders of the nonvoting shares receive $15 per share for their common stock cashed out in the merger.

From this, I noted that three legal actions are common…

Thanks to all who responded to my query two weeks ago on teaching corporate fiduciary duties.  I continue to contemplate your suggestions as I recover from the cold that has consumed me now for a week.  Don’t catch this version of the common cold!  It’s a bear.

Anyway, the weekend after I published that post, I presented at a super symposium on shareholder rights at the University of Oklahoma College of Law–“Confronting New Market Realities: Implications for Stockholder Rights to Vote, Sell, and Sue,” hosted by the Oklahoma Law Review.  (I spoke on rights to sell securities purchased in an offering exempt from registration under the CROWDFUND Act, Title III of the JOBS Act.)  Although it was not part of the formal agenda for the symposium, I got a chance to chat informally with a group of folks at and after the conference, including our host, Megan Shaner, along with Jessica Erickson, Gordon Smith, and Vice Chancellor Travis Laster from the Delaware Chancery Court (among others) about fiduciary duty complexity.  All, even the Vice Chancellor, had sympathy, offering ideas for simplifying corporate fiduciary duty law (as opposed to merely the teaching of it) that made sense.  And it seems that among those of us in…

My October included some signifiant tricks and a bunch of parallel treats.  I will highlight but a few of each here.  They illustrate, in my view, the busy mid-semester lives that law professors may have.

The Tricks

It was a real trick for me to give three distinct presentations in three cities (two in person and one virtually) in a two-day period early in the month.  On the morning of October 6, I participated in a panel discussion at The Crowdfunding Conference in New York City (New York).  That afternoon, I jumped on a plane for Little Rock (Arkansas), where I gave a continuing legal education presentation on crowdfunding for the Arkansas Bar Association as part of a program on “Capital Raising Today and Securities Law Issues.”  Finally, later that day, I was Skyped into a the North Carolina Law Review 2016 annual symposium in Chapel Hill (North Carolina) on “The Role of Law in Entrepreneurship,” at which I presented a draft paper, forthcoming in the North Carolina Law Review, on the important role of business finance lawyers in entrepreneurial enterprise.  

It then was a trick to refocus my energy on faculty hiring a few days later.

Building on Joan’s personal reflection about her time in practice and stemming from a conversation with a student this week, I decided to post (and solicit comments) on the BigLaw practice areas that are most/least conducive to part-time work or work while raising children. While no practice areas in BigLaw are well known for being incredibly flexible, it did appear that certain practice areas were more flexible than others.

In my view, tax appeared to be the most flexible practice group area and M&A (my first practice group area) appeared to be the least flexible. Granted, I never practiced tax law, but as an M&A attorney you solicit comments from many areas within the firm and you get a sense of their schedules.

The advantages of the tax group were a high billing rate (some of the very highest in the firm) and a lot of piecemeal, often not urgent, work. Sure, we “urgently” needed tax comments on most of our deals, and when clients are paying BigLaw rates, they almost always want a prompt response. But in my limited experience, the tax lawyers controlled their timelines more so than any of the other attorneys I worked with. There were…

The Association of American Law Schools (AALS) Annual Meeting will be held Tuesday, January 3 – Saturday, January 7, 2017, in San Francisco.  Readers of this blog who may be interested in programs associated with the AALS Section on Socio-Economics & the Society of Socio-Economics should click on the following link for the complete relevant schedule: 

Download Socio-Economic AALS Participants + Descriptions 161018

Specifically, I’d like to highlight the following programs:

On Wednesday, Jan. 4:

9:50 – 10:50 AM Concurrent Sessions:

  1. The Future of Corporate Governance:
    How Do We Get From Here to Where We Need to Go?
    andre cummings (Indiana Tech)                            Steven Ramirez (Loyola – Chicago)
    Lynne Dallas (San Diego) – Co-Moderator        Janis Sarra (British Columbia)
    Kent Greenfield (Boston College)                        Faith Stevelman (New York)
    Daniel Greenwood (Hofstra)                                 Kellye Testy (Dean, Washington)
    Kristin Johnson (Seton Hall)                                 Cheryl Wade (St. John’s ) Co-Moderator
    Lyman Johnson (Washington and Lee)
  2. Socio-Economics and Whistle-Blowers
    William Black (Missouri – KC)                                 Benjamin Edwards (Barry)
    June Carbone (Minnesota) – Moderator             Marcia Narine (St. Thomas)

1:45 – 2:45 PM Concurrent Sessions:

1. What is a Corporation?
Robert Ashford (Syracuse) Moderator                             Stefan Padfield (Akron)
Tamara Belinfanti (New York)                                             Sabeel Rahman (Brooklyn)
Daniel Greenwood (Hofstra)

On Thursday, Jan. …

Sadly, I am still in the midst of grading business associations and civil procedure midterms so I cannot finish my substantive post on Wells Fargo yet. WF is the gift that keeps on giving from a teaching perspective, though. Yesterday I showed students some of the litigation that has come out of the debacle to illustrate the difference between a direct and derivative suit (and to reinforce some civil procedure principles too).

Last night I took a break from grading to go to a Meetup called Ask a Start Up Lawyer. I hope to teach a 2-credit skills course on legal issues for startups, small businesses, and entrepreneurs next semester and I have found that going to these sessions and listening to actual entrepreneurs ask their questions helpful. Last night’s meetup was partcularly enlightening because a number of international entrepreneurs here in Miami for a State Department initiative attended. While in the past some of these sessions have focused on funding options and entity selection, last night’s “students” mainly wanted to learn about intellectual property and international protection. Many of them come from countries with no copyright law, for example. Others come from countries where owning shares is a rarity.

Today I used Wells Fargo as a teaching tool in Business Associations. Using this video from the end of September, I discussed the role of the independent directors, the New York Stock Exchange Listing Standards, the importance of the controversy over separate chair and CEO, 8Ks, and other governance principles. This video discussing ex-CEO Stumpf’s “retirement” allowed me to discuss the importance of succession planning, reputational issues, clawbacks and accountability, and potential SEC and DOJ investigations. This video lends itself nicely to a discussion of executive compensation. Finally, this video provides a preview for our discussion next week on whistleblowers, compliance, and the board’s Caremark duties.

Regular readers of this blog know that in my prior life I served as a deputy general counsel and compliance officer for a Fortune 500 Company. Next week when I am out from under all of the midterms I am grading, I will post a more substantive post on the Wells Fargo debacle. I have a lot to say and I imagine that there will be more fodder to come in the next few weeks. In the meantime, check out this related post by co-blogger Anne Tucker.

JLSE

The Journal of Legal Studies Education (“JLSE“) is accepting article and case study submissions. The JLSE is a peer-reviewed legal journal focused on pedagogy. In 2015, I published a case study with the JLSE, had an excellent experience, and received helpful comments from the reviewers. The announcement is below:

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The Journal of Legal Studies Education is seeking submissions of manuscripts. The JLSE publishes refereed articles, teaching tips, and review of books.  Manuscripts must relate to teaching, research, or related disciplines such as business ethics, business and society, public policy and individual areas of business law related specialties. The Editorial Board selects high quality manuscripts that are of interest to a substantial portion of its readers. 

The JLSE is a double-blind peer-reviewed journal.

Please submit directly to Stephanie Greene, JLSE Editor-in-Chief, at stephanie.greene@bc.edu.

Stephanie M. Greene

Chair, Business Law Department

Professor, Business Law

Carroll School of Management

Boston College

Chestnut Hill, MA 02467