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Judge Diane Wood of the Seventh Circuit has published an essay in the Yale Law Journal that surveys citations to legal scholarship emerging from the Seventh Circuit.  She argues that movements like Legal Realism and its descendants challenge the concept of “judging” as a distinct activity from lawmaking, and as a result, scholarship that emerges from these traditions is not helpful to a sitting judge attempting to identify “what the law is.”  She further argues that within the academy, the effect is exacerbated by a norm that values theoretical scholarship over practical “doctrinal” work, and hypothesizes that the type of doctrinal scholarship that judges are most likely to find useful is also more likely to be found in journals that carry less prestige.

Interestingly, Jeffrey Lynch Harrison and Amy Rebecca Mashburn reached similar conclusions.  They studied judicial citations and found that judges – far less than academics – do not appear sensitive to the prestige in which an article appears, thus kicking off a debate regarding the purpose and value of legal research (see posts here and here).  Among other things, Michael Risch defends legal scholarship on the grounds that its usefulness – to judges, to practitioners &ndash…

So the big securities news this week was the “hoax” bid to buy Avon Products.

Apparently, a hoaxster filed a fake offer to take over Avon Products with EDGAR, the SEC’s online database.

The filing caused a brief spike in the price of Avon shares.  (As of the drafting of this blog post, Avon shares were still trading slightly higher than they were before the offer was filed).  The details of the filing are as yet unknown, but presumably, whoever filed the release profited off the spike.

DealBook points out that this kind of incident may prompt the SEC to conduct some kind of preliminary vetting of filings with EDGAR, but one of the more interesting questions – as Matt Levine argues – concerns the definition of “materiality” for securities laws purposes.  Ordinarily, false statements (such as a false representation concerning a takeover bid) are only prohibited to the extent they are “material” to a “reasonable” investors.  Most human investors would likely have recognized the dubiousness of the offer (it named a law firm that doesn’t exist, and misspelled the name of the offeror); computerized traders, however, did not.  (And perhaps humans then followed on, seeking to capitalize…

I am delighted to introduce Marcos Antonio Mendoza as an additional BLPB guest blogger for this month.  He plans to do several posts here over the next few weeks.  I look forward to his contributions.

Marcos is a graduate of Washburn University School of Law (J.D.) and the University of Connecticut School of Law (LL.M.), with Honors.  His recent article in the Connecticut Insurance Law Journal, “Reinsurance as Governance: Governmental Risk Management Pools as a Case Study in the Governance Role Played by Reinsurance Institutions,”  is a continuance of “insurance as governance” scholarship through the empirical examination of reinsurer relationships.  With more than 25 years in the insurance and self-funded pooling industries, he currently is an assistant director with the third party administrator for one of the largest public-entity risk management funds in the U.S., based in Austin, Texas.

Marcos is a regular reader of–and sometimes-commenter on–the BLPB.  His perspectives have been quite valuable to me.  I hope that you will find his insights helpful to your work.

Karen Kelsey at the Professor Is In wrote an insightful post about the on-campus interview portion of academic jobs.  Having come to academia straight from practice, I would have loved to read something like this before going on the market.  As as someone who has served on search committees  5 out of the last 6 years, I wish that all candidates had this level of awareness about the role and purpose of the on-campus interview.  

Candidates have to demonstrate that they are excellent scholars, excellent teachers, and good departmental colleagues. Beyond that, they must show that their scholarship, teaching, and service are suited to the particular campus, department, and job. And they have to convey that they [are] engaging and pleasant to be around. 

While most of the BLPB readers are gainfully employed academics and lawyers so this article isn’t relevant to you directly, but it may be a good resource as we mentor folks interested in academic careers or any professional job with extensive interviewing.

-Anne Tucker

Two weeks ago, I blogged about an interesting new book on bitcoin, the digital currency. I noted that the backbone of bitcoin is the blockchain software that verifies bitcoin transactions.

The Wall Street Journal reports that NASDAQ is testing blockchain technology as a settlement mechanism for trading in the shares of private companies. If the test is successful–and that’s a huge “if” given the need to scale up the software to unaccustomed heights–blockchain could be used to verify that buyers and sellers actually made reported trades. It could potentially eliminate the need for a centralized settlement system.

One more reason for business lawyers to read the Vigna and Casey book and get up to speed on bitcoin.

In Williams-Yulee v. The Florida Bar (.pdf), the Supreme Court rejected a First Amendment challenge to the Florida Canon of Ethics that bans judicial candidates from personally soliciting campaign contributions.  And I realize this is an odd case to discuss on this blog – nothing about it explicitly engages business law issues – but bear with me as I get to the (perhaps, ahem, somewhat attenuated) business-related point.

The gripping story of how an accountant took on Halliburton and won.

It’s the story of Tony Menendez, a Halliburton accountant who believed that the company was incorrectly recognizing revenue.  When the company wouldn’t correct its practices, he went to the SEC.  Halliburton learned of the complaint,  Menendez was ostracized, and the SEC investigation was dropped.  This kicked off a years-long battle in which Menendez sought protection under SOX as a whistleblower, ultimately culminating in a decision from the Fifth Circuit. 

What the article does not discuss, though, is the legal issue that dominated the case – namely, what legally qualifies as an adverse action for SOX purposes.  Halliburton executives disclosed Menendez’s identity to the rest of the accounting department, and his coworkers shunned him; thus, the critical question was, did disclosure of his identity, coupled with ostracism, constitute a materially adverse action?  See Halliburton, Inc. v. Administrative Review Bd., 771 F.3d 254 (5th Cir. 2014).  Notably, just last month, the Fifth Circuit – in a very closely divided decision – decided not to rehear the case en banc, over the lengthy dissent of Judge Jolly.  See Halliburton Co. v. Admin. Review Bd., United States DOL, 596 Fed. Appx. …