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In prior BLPB posts (here and here), I have written about the proposed Department of Labor fiduciary rules changing the ERISA fiduciary definition to cover anyone who provides investment advice for a fee.  Under the current framework only registered Investment Advisers are fiduciaries, not broker-dealers.  This bifurcated legal standards and payment systems has led to confusion among the public and there is evidence that it has also cost retirement savings as a result of conflicted advice.  The proposed rules were released in April 2015 and the comment period was extended through September 2015.  The DOL received over 2800 comments and held 4 days of public hearing (transcripts available here) on the proposed changes. Earlier this month, the House held 2 committee hearings on H.R. 1090, the Retail Investor Protection Act, introduced by Rep. Ann Wagner (R-Mo) last February which would require the DOL to postpone its rule making until after the SEC issued it own standards on fiduciary duties– something the SEC is unlikely to do.  The House Financial Services Committee hearing transcript on the continued debate is available here.

-Anne Tucker

I’ve been thinking a lot about the way technology can influence the path of the law – in terms of both judging and scholarship.

For example, the introduction of electronic legal databases like Westlaw has almost certainly changed how judges function.  They may be more reliant on clerks today than they used to be, because the sheer accessibility of so much relevant case information requires assistance to sift through.  I also wonder if precedent – rather than inductive or explicitly policy-based reasoning – has become more important (or is at least given greater emphasis) because of the ease with which earlier caselaw can be located.

Over at Prawfs, they’re discussing Judge Posner and the ethics of independent judicial factual research – something that technology has made far easier for judges to do.

Here at BizLawProf, we’ve talked about the relevance of law reviews in a world where SSRN can make articles immediately available (not to mention a world where law professors can, you know, umm, blog).

A number of law professors post articles to SSRN that aren’t articles so much as they are a form of advocacy – legal briefs, after a fashion, intended to sway a deliberations on…

I just completed the unit on partnerships in my Business class, and we covered Page v. Page, 55 Cal. 2d 192 (Cal. 1961), the case of the warring brothers who ran a linen supply partnership.  This is a semi-famous case – not as fundamental as Meinhard v. Salmon, but included in several business casebooks and discussed in many law review articles.

The opinion itself is maddeningly short on details of the relationship between the brothers, and how it is that this family dispute came to end up in a courtroom.

What we know from the California Supreme Court is this:

George Page was the sole owner of a corporation that supplies linen and machinery for the operation of industrial linen businesses.

George entered into an oral partnership agreement with his brother, H.B., in 1949.  That partnership was to operate a linen supply business serving Santa Maria.  Each brother contributed $43,000 of capital to the business that apparently went to purchase a few basic assets.  Day to day operations, however, depended on services and materials supplied by George’s corporation.  The partnership was unprofitable for its 10 years of existence, and ultimately came to owe George’s corporation $47,000 for the materials it supplied.

When the Vandenberg Air Force base was established in Santa Maria, the partnership finally began to turn a profit.  Only a few months later, however, George proclaimed that he wanted to dissolve the partnership, and sought declaratory judgment that the partnership was at-will, giving him free rights of withdrawal.  H.B. opposed, arguing that the partnership was intended to last until all obligations were paid, and that George was only trying to dissolve now so that he could take sole advantage of the opportunities afforded by the air force base.  Among other things, H.B. pointed out that a previous partnership between him and George explicitly provided it was to terminate only when obligations were paid off, and therefore this partnership should be interpreted similarly.

Ultimately, the court concluded that the partnership was at-will, but allowed that H.B. might be able to demonstrate a breach of fiduciary duty if George intended to appropriate for himself benefits properly allocated to the partnership.

The opinion offers no further insight into the George/H.B. arrangement, which leaves it to teacher’s manuals to speculate – and two in particular offer wildly divergent interpretations.

[More under the cut]

The Georgetown Institute for the Study of Markets and Ethics (GISME), located in Georgetown University’s McDonough School of Business, invites applications for the 2015 Junior Faculty Manuscript Workshop. The aim of the workshop is to provide critical feedback to junior scholars (i.e., junior faculty members, postdocs, or non-tenure-track professors) who are working on book-length manuscripts that address important normative issues related to the functioning of contemporary market societies. A limited number of applicants will be invited to Washington in the Spring 2016 semester for a day-long workshop devoted to their manuscript and will work with GISME to identify 2-4 senior scholars to act as discussants. Each workshop will consist of several sessions dedicated to discussion of the author’s manuscript. Sessions will begin with a critical commentary on a section of the manuscript by an invited participant. The author will then have the chance to respond and subsequently open up the floor for further commentary and discussion. The format is designed to maximize feedback for the author.

Interested applicants should submit the following material via email to Michael Kates at mk1501@georgetown.edu with “GISME Junior Faculty Manuscript Workshop” in the subject line: -a CV; -a manuscript abstract (no more than two pages)…

Further to Joan’s and Steve’s posts regarding the value that transactional lawyers can add to deals, Elisabeth de Fontenay at Duke has recently posted an article to SSRN, Law Firm Selection and the Value of Transactional Lawyering, which explores a new dimension along which lawyers can add value for clients: their unique, experience-based knowledge of deal terms.

de Fontenay’s argument is that for complex deals, it may not be readily apparent what the value or cost is for each term, and that lack of transparency impedes bargaining.  Experienced transactional lawyers have a unique knowledge base from which to draw upon, allowing parties to learn of new deal possibilities and value their alternatives.  de Fontenay points out, however, that this model is in tension with traditional notions of client confidentiality, because the lawyer’s value to the client is a function of the lawyer’s ability to pool knowledge drawn from other engagements.  The model also explains why elite law firms continue to be able to charge a premium for their services, and why they have combined into such large organizations: their size allows them to grow their knowledge base, and elite firms, by virtue of their experience, are able

Claire Moore Dickerson, a much-loved member of the Tulane faculty, passed away recently.  I did not have the privilege to know her personally (though I have been grateful to her for her notes while designing my Business Enterprises class), and I know how much she will be missed by my colleagues.

There will be a burial service tomorrow and a memorial service in Rye, New York on October 17.  Christine Hurt at The Conglomerate has more.

Today’s Labor Day, and what better topic to discuss on Labor Day than law teaching jobs?

A candidate for a law school teaching position recently asked if I would post advice on the interview process. That’s like asking the Tasmanian Devil for advice on coping with ADHD. I didn’t exactly tear up the interview scene when I was interviewing thirty years ago. But I have seen a great deal of the process from the other side since then, including two stints on our Appointments Committee.

I can’t tell you how to ace the law teaching interview process, but I do have a good idea of what doesn’t work. I have seen a number of candidacies ruined by incredibly bad interviews and job talks. If you have the credentials to get in the door, but you don’t really want the job, here, in no particular order, are eleven easy ways to sabotage your search.

1. Don’t change the names when you send out that form letter.

“I would really like to teach at Nebraska because I love the Southeast. Go Dawgs!” Believe it or not, I have actually seen letters like this. (Not with “Go Dawgs.” No one in his right…