Teaching

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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. 

As the discussion about law reviews and the value (or lack thereof) of student-edited reviews continues, I can’t help but feel like some very thoughtful people are talking past each other. (See, e.g., here, here, and here.) As I mentioned last week, I see both sides of the story, and I often find myself agreeing in part with both camps. I am a former editor in chief (EIC) of the Tulane Law Review, and a law professor, and a law review advisor (the latter two at the University of North Dakota). I mention this because I feel like I have seen all sides of the law review process in a way that is (I think) different from many. 

As I noted before, I don’t think that those who have expressed frustration with law reviews are mean spirited or inherently wrong. They have a point, but I can’t quite get there. I simply think we can do better without scrapping everything. So, to add to the discussion (or further muddy the waters), here are some thoughts and examples from both sides of the experience:

(1) When I took over as EIC, I followed the format…

Robert Krulwich, on his NPR blog, writes that that people are “pattern-finding animals.”  He goes on to say:

Do any of us live beyond pattern? Do great musicians, breakthrough artists, great athletes operate pattern free? Pattern indifferent?

I don’t think so. Artists may be, oddly, the most pattern-aware. Case in point: The totally unpredictable, one-of-a-kind novelist Kurt Vonnegut (Slaughterhouse-Five, Cat’s Cradle, God Bless You, Mr. Rosewater) once gave a lecture in which he presented — in graphic form — the basic plots of all the world’s great stories. Every story you’ve ever heard, he said, are reflections of a few, classic story shapes. They are so elementary, he said, he could draw them on an X/Y axis.

The site then has a link (here) to a short excerpt of a talk from Kurt Vonnegut that is worth a look. (I think, anyway, but I am huge Vonnegut fan.) 

What does this have to do with business law?  Well, maybe not that much, but it seems relevant to me in the context of the discussion about the recent, but not new, concerns about law reviews Steve Bradford, Stephen Bainbridge, and others are talking about.  The current…

Lewis Lazarus recently posted Directors Designated By Investors Owe Fiduciary Duties to the Company as a Whole and Not to the Designating Investor at the Delaware Business Litigation Report.  In his article, he explained

[The Delaware] cases teach that directors designated by particular stockholders or investors owe duties generally to the company and all of its stockholders.  Where the interests of the investor and the company and its common stockholders potentially diverge, the directors cannot favor the interests of the investor over those of the company and its common stockholders.

Professor Bainbridge weighs in (here), agreeing that the above is the general rule, but that in some cases that may not be best.  He gives a few examples, such as a struggling company granting a union nominee a board position or a time when preferred shareholders can elect a board majority because no dividends were paid for a sufficient period of time. He then notes that a director’s “sponsor might reasonably expect the directors not just to ‘advocate’ for the shareholder’s position, but to vote for it and take other action.”  Professor Bainbridge concludes that he still doesn’t “think the sponsor should be able to punish…