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Here in West Virginia, it’s exam time for our law students.  For my Business Organizations students, tomorrow is the day.  For students getting ready to take exams, and for any lawyers out there who might need a refresher, the Kentucky Supreme Court provides a good reminder that LLCs are separate from their owners, even if there is only one owner.  

Here’s a basic rundown of the case, Turner v. Andrew, 2011-SC-000614-DG, 2013 WL 6134372 (Ky. Nov. 21, 2013) (available here):   In 2007, an employee of M&W Milling was driving a feed-truck owned by his employer.  A movable auger mounted on the feed-truck swung into oncoming traffic and struck and seriously damaged a dump truck owned by Billy Andrew, the sole member of  Billy Andrew, Jr. Trucking, LLC, which owned the damaged truck.  Andrew filed suit against the employee and M & W Milling  claiming personal property damage to the truck and the loss of income derived from the use of damaged truck.  Notably, the LLC was not a named plaintiff in the lawsuit.

Hey issue spotters: check out the last line of the prior paragraph. (Also: a bit of an odd twist is the Andrew chose not to respond to discovery requests, though…

Last week, I attended and presented at my first legal studies in business school conference, the Southeastern Academy of Legal Studies in Business (“SEALSB”) annual conference.  On this recent trip, I was able to meet a number of other professors who hold positions similar to mine at other business schools.  Most of the professors were from the southeast, but we also had professors from California, Michigan, Minnesota, and New York.

One of the new pieces of information I learned was that, while I was correct in my previous post stating that there is no “meat market” equivalent for legal studies in business school positions, the Academy of Legal Studies in Business (“ALSB”) does send out job postings, on occasion, to its members.  Also, more than one professor in attendance claimed to have obtained his/her current position by attending the ALSB annual meeting and networking.

In this post, I will discuss some of the differences I see between my current job as a professor teaching law in a business school and my previous job as a law professor in a law school.  I draw on my own experiences and conversations I have had with many professors across the country, at both…

Yesterday was election
day!  Elections hold a special place
in my heart, and I remain interested in the interplay of corporations and campaigns,
especially in a post-Citizens United
world.  The races, candidates, and
results, however, received significantly less attention without a federal
election (mid-term or general) to garner the spotlight.  The 2014 election season, which officially
begins today, has several unknowns. While Citizens
United facilitated unlimited independent expenditures (distinguishable from
direct campaign contributions) for individuals and corporations alike,
corporations remain unable to donate directly to campaigns.  Individual campaign contributions are
currently capped at $2,500 per candidate/election and are subject to aggregate
caps as well.  McCutcheon
v. FEC, which was argued
before the US Supreme Court on October 8, 2013, challenges the individual
campaign contribution cap.  If McCutcheon removes individual caps, the foundation
will be laid to challenge corporate campaign contribution bans as well.  See this pre-mortem
on McCutcheon by Columbia University law professor Richard Briffault.  As for current corporate/campaign finance
issues, the focus remains on corporate disclosures of campaign expenditures in
the form of shareholder
resolutions (118 have been successful) and company-initiated
disclosure policies, possible
SEC disclosure requirements for corporate political expenditures, and the
threat…

Although I blog
on business issues, I spent most of my professional life as a litigator and
this semester I teach civil procedure. A few weeks ago I asked my students to
draft a forum selection clause and then discussed the Boilermakers v. Chevron forum selection bylaw case, which at the
time was up on appeal to the Delaware Supreme Court.  The bylaws at issue required Delaware to be
the exclusive venue for matters related to derivative actions brought on behalf of the corporation;
actions alleging a breach of fiduciary duties by directors or officers of the
corporation; actions asserting claims pursuant to the Delaware General
Corporation Law; and actions implicating the internal affairs of the
corporation.  

While I was not
surprised that some institutional investors I had spoken to objected to
Chevron’s actions, I was stunned by the vitriolic reactions I received from my
students. I explained that Chevron and FedEx, who was also sued, were trying to
avoid various types of multijurisdictional litigation, which could be
expensive, and I even used it as a teachable moment to review what we had
learned about the domiciles of corporations, but the students weren’t buying
it.

Perhaps in
anticipation of…

Yesterday, the Executive Director, James Leipold, of
NALP (the National Association of Law
Placement) presented data regarding law graduate hiring trends from 2000
through 2012, both nationally and for my school (Georgia State University
College of Law).  It provided an
understanding of the changes to the legal market as a whole, and for our graduates
specifically.  I wasn’t aware of the data
compiled by NALP and available on their website prior to this presentation, and
man was I impressed.  As a faculty member
who frequently counsels students on job searches, the data paints a very
interesting story about HOW a majority of law graduates find jobs and WHERE
they find them.  The data also tells a
very compelling story of how the 2008 financial crisis/Great Recession has
impacted the legal hiring market.  (In
short:  big law jobs are down
significantly which was created downward pressure on alternative career paths
as students who would have traditionally pursued big law jobs compete for other
positions.) 

On the HOW question, the data confirmed a suspicion
of mine about how a majority of students find jobs.  Of course these statements will be either
more or less true depending on the reputational capital of your…

Yesterday, the New York Times published what I consider a medicocre criticism of law reviews.  Not that some criticism isn’t valid.  It is.  I just think this one was poorly executed.  Consider, for example, these thoughtful responses from Orin Kerr and Will Baude.

As I have thought about it, one thing that struck me was about the Times article was the opening:

 “Would you want The
New England Journal of Medicine to be edited by medical students?” asked
Richard A. Wise, who teaches psychology at the University of North Dakota. 

Of course not. Then why are law reviews, the primary
repositories of legal scholarship, edited by law students?

I don’t disagree with the premise, but note how limiting it is.  First, it talks about one journal, one that is highly regarded.  I know some people hate all law reviews, but I humbly suggest that most people consider elite journals like the Yale Law Journal a little differently.  (It’s also true that some journals like the Yale Law Journal happen to use some forms of peer review in their process.) 

Second, the implication is that medical journals have it all figured out.  That’s apparently not true, either.  An article from…

Stephen Davidoff recently posted a piece on DealBook
entitled “A Push to End Securities Fraud Lawsuits Gains Momentum,” in which he notes
that “Halliburton is asking the Supreme Court to confront one of the
fundamental tenets of securities fraud litigation: a doctrine known as “’fraud
on the market.’”  He goes on to provide a
lot of interesting additional details, so you should definitely go read the
whole thing, but I focused on the following:

In its argument, Halliburton is asking the
Supreme Court to confront one of the fundamental tenets of securities fraud
litigation: a doctrine known as “fraud on the market.” The doctrine has its
origins in the 1986 Supreme Court case Basic v. Levinson. To state a claim for
securities fraud, a shareholder must show “reliance,” meaning that the
shareholder acted in some way based on the fraudulent conduct of the company. In
the Basic case, the Supreme Court held that “eyeball” reliance — a requirement
that a shareholder read the actual documents and relied on those statements
before buying or selling shares — wasn’t necessary. Instead, the court adopted
a presumption, based on the efficient market hypothesis, that all publicly
available information about

…

I am emerging from a rabbit hole of research that began approximately 3.5 hours ago.  The question was inspired by teaching the 2002 Delaware Supreme Court case,
Download Gotham 817_A.2d_160, in my unincorporated business associations class and students’ drafting of fiduciary duty waivers in a limited partnership agreement.  Many of you are already aware that Delaware allows for the complete elimination of general partners’ fiduciary duties. I knew that Delware was an outlier in this area, but I wasn’t certain by how much.  So 3.5 hours and a 50 state (plus D.C.) survey later, I have a concrete answer.  Only Delaware (
Download Delaware GP Fiduciary duty statute) and Alabama (
Download Alabama Statute) statutes allow for the complete elimination of fiduciary duties for general partners.  The remaining 49 jurisdictions surveyed only allow for the expansion or restriction of fiduciary duties, but not the elimination.  Of those 49 jurisdictions, 20 have a stand alone provisions that outline the fiduciary duties of general partners, and 29 statutes establish the minimum fiduciary duties for general partners by linkage to the traditional partnership statutes.  Of the 29 jurisdictions that rely on linkage to traditional partnership statutes, 13 use a Uniform…

A friend recently asked me to suggest some books that might help him improve his meditation practice.  Operating under the assumption that if the topic is appropriate for the Wall Street Journal (“Doctor’s Orders: 20 Minutes Of Meditation Twice
a Day“), then it’s good enough for this blog, I thought I’d pass on my suggestions to interested readers.  The first 3 make up my personal list of “classics,” and the last is a shameless plug for a book of edited dharma talks I wrote based on my year of studying under sensei Ji Sui Craig Horton of the Cleveland
Buddhist Temple.  While my suggestions all focus on Buddhist/Zen meditation, there are certainly more “generic” approaches to learning about meditation — for example, one might visit the website for the Center for Contemplative Mind in Society,
which seeks to transform higher education “by supporting and encouraging
the use of contemplative/introspective practices and perspectives to create
active learning and research environments that look deeply into experience and
meaning for all in service of a more just and compassionate society” (I was made aware of this source while attending a panel discussion on “Engagement, Happiness, and Meaning in …

I (Josh Fershee) will follow up with a post of some (I hope) substance
shortly, but I thought I’d take a moment to briefly re-introduce myself.   When I last wrote for BLPB, I was teaching
at the University of North Dakota School of Law. Last fall, we made the move to
West Virginia University College of Law. 
(I say “we” because my wife (Kendra Huard Fershee) not only moved with me, but because she is
also on the law faculty.)   I joined WVU as part of a university-wide
energy-law expansion and work with the Center for Energy and Sustainable
Development.

I teach business law courses and energy law courses, with
most of my research relating somehow to energy business and regulation.  I teach Business Organizations, Energy Law
Survey, Energy Business: Law & Strategy, and Energy Law and Practice.  I plan to add a Hydraulic Fracturing
Seminar, too, in the near future. 

Of perhaps some interest to our readers, I have taught my Energy Business: Law & Strategy course once, and I plan to do so again in the
spring.  I think it is a unique class,
especially in the law school environment, with its focus on how law comes to be and how businesses are strategic in their use of law and regulation.  (Note: I am of the mind that this reality is important to understand whether you want to work for businesses and employ such strategies or if you want to work to limit businesses in the ability to do so.)  I have the students work in groups, and they draft a written final
project, which they also present to the class. 

Below the jump, I provide the books, course description, goals, and
assessment items for the course. I welcome any comments or suggestions for additional teaching
materials or concepts.