CALI, the Center for Computer-Assisted Legal Instruction, holds an annual Conference for Law School Computing that brings together law professors, law librarians, educational technologists, I.T. directors, and others interested in the application of technology in legal education and the law generally. Attendees range from hard-core techies to unsophisticated neophytes looking for new ideas. I have attended several of these conferences and have always found them informative and enjoyable. (Full disclosure: Until recently, I was a member of CALI’s Board of Directors.)

This year’s conference is June 19-21, at Harvard Law School. That’s in Cambridge, Mass., for those who haven’t heard of the school. (Harvard is my alma mater, but they have encouraged me not to tell anyone.) If you’re a lawyer or law professor interested in bringing legal education or the legal profession into the 21st century, or even if you would settle for bringing it into the late 20th century, this is a great conference.

In addition, if you have an idea for a presentation, I would encourage you to submit a proposal. Unlike many conferences, presentations are not limited to invited speakers. Anyone may submit a proposal. Just follow this link, create an account, and click on…

Hello, everyone.  Stefan put out a call for reasonable facsimiles of business law professors, and I figured I fit the bill.  I’m a Visiting Assistant Professor at Duke Law, currently teaching Securities Litigation.  I’ve arrived here directly from practice: For the past 11 years, I’ve worked as a plaintiff-side securities litigator.

(On my first day of class, I asked how many of my students had done securities litigation work, perhaps as summer associates.  Almost every hand went up.  Then I asked how many had worked plaintiff-side.  The hands went down so quickly I swear I heard whooshing noises.  To be fair, there was one student who’d done plaintiffs’ work – outside the US.)

Anyway, like anyone teaching securities litigation these days, there’s one thing on my mind: Halliburton, where the Supreme Court is being asked to overrule Basic Inc v. Levinson, the case where it endorsed the fraud on the market presumption of reliance for claims brought under Section 10(b) of the Securities Exchange Act.

There’s been a lot of chatter about the possibility that if Basic is overruled, plaintiffs may, in some instances, still be able to obtain a presumption of reliance under Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972) – many of the Halliburton parties and amici seem to assume this is the case, and it’s come up in the blogosphere.

Affiliated Ute holds that when a fraud consists of material omissions rather than affirmative misstatements, reliance may be presumed.

The problem that often seems to be overlooked, though, is that the Affiliated Ute presumption is rebuttable – and specifically, it’s rebuttable upon a showing that disclosure would not have made a difference, because the plaintiff never read the document in which the omission is contained.  See Eckstein v. Balcor Film Investors, 58 F.3d 1162 (7th Cir. 1995); Shores v. Sklar, 647 F.2d 462 (5th Cir. 1981).

Given that, I don’t see how much of a role it can play with respect to substituting for Basic.  Defendants’ obvious ability to rebut the presumption with respect to wide swaths of the class should be enough to defeat class certification.  This is not to say that defendants’ rebuttal arguments should be entertained at class certification; the point is that there will be so many individualized differences among class members regarding what they read or did not read that class certification would usually be inappropriate, just as in any other non-fraud-on-the-market case where a defense applies differently to a significant number of class members (though there is authority the other way, see In re Smith Barney Transfer Agent Litig., 290 F.R.D. 42 (S.D.N.Y. 2013)).

But then I have a long train of speculation as I imagine how this might play out….

[More after the break]

I typically leave introductions to the bloggers themselves, but let me just say that we here at the BLPB are very much looking forward to having Ann Lipton guest blog with us for the next four weeks.  Professor Lipton is currently at Duke Law, and her primary focus is on federal securities regulation and complex civil litigation.  You can find her full profile here.  Welcome, Ann!

My dear friend, mentor, and colleague John Gradwohl died yesterday. John, the Judge Harry A. Spence Professor of Law, taught on the faculty at the University of Nebraska College of Law for over 50 years. I don’t know what I will do without him around. I know few of you knew John, but it’s your misfortune that you didn’t.

When I came to Nebraska from Dallas 27 years ago, without a friend within 500 miles and without a clue about how to be a legal academic, John virtually adopted me and my family. We stayed at his house when we first visited Lincoln to look for a home. My wife, kids, and I attended family Christmas parties at his house. He took an active interest in my children as they grew up and became adults. The uniform reaction of my children when I told them yesterday that he had died was, “He was such a nice man.”

My office has been next to John’s since I arrived at Nebraska, and we were often in each other’s offices. John shared his knowledge freely and tried to keep me from making stupid academic mistakes. (My usual approach to academic discourse is “Ready…

As Anne Tucker noted, last week was the fourth anniversary of the Supreme Court’s Citizens United decision, striking down as unconstitutional a ban on electioneering expenditures by corporations.

I don’t want to discuss the merits of that decision. I’m not a constitutional expert and many people much more qualified than I have chimed in. Instead, I want to talk about the public reaction to the decision. In my (admittedly limited) experience, non-lawyers react to Citizens United very differently from lawyers.

The Reaction of the Lay Public

The reaction of many non-lawyers is, “Are you nuts? Only people have constitutional rights and corporations aren’t people.” The mere idea that corporations should be treated like natural persons with similar constitutional rights is both hilarious and outrageous. Corporations aren’t people, and only an idiot would think otherwise.

The Reaction of Lawyers

The reaction of many lawyers is quite different. (I’m excluding those lawyers who appear as pundits on talk shows and are expected to overreact.) Many lawyers disagree with the Citizens United decision, but most lawyers don’t consider the idea of giving corporations the same rights as natural persons as completely beyond the pale of reason. The focus of the debate among…

Late last month, the SEC released its Report on Review of Disclosure Requirements in Regulation S-K. This report is in response to section 108(a) of the JOBS Act, which provides that

The Securities and Exchange Commission shall conduct a review of its Regulation S-K . . . to

(1) comprehensively analyze the current registration requirements of such regulation; and

(2) determine how such requirements can be updated to modernize and simplify the registration process and reduce the costs and other burdens associated with these requirements for issuers who are emerging growth companies.

The SEC is required by section 108(b) to transmit the report to Congress, including “the specific recommendations of the Commission on how to streamline the registration process in order to make it more efficient and less burdensome for the Commission and for prospective issuers who are emerging growth companies.”

This report was supposed to be submitted by October 2, 2012, 180 days after the passage of the JOBS Act. It was actually released on December 20, 2013, more than a year after that deadline.

The SEC apparently believes this report satisfies the requirements of section 108. The first page of the report includes a label “As Required…

I have spent a great deal of my academic life in the relative obscurity of Securities Act registration exemptions. It’s an important area of the law, especially for startups and other small businesses, but not one that has attracted a great deal of academic attention until recently. I could count the academics who specialize in the area on one hand.

From Obscurity to Slightly Less Obscurity

The JOBS Act, and the debate about crowdfunding that preceded the JOBS Act, have brought my academic specialty into the limelight. Dozens of papers and countless blog posts have appeared in the last couple of years discussing crowdfunding, general solicitation, Regulation A and Regulation A+, and a number of other aspects of exempted securities offerings. People have finally become interested in issues I have been writing about for over twenty years.

The Benefits (and Costs) of Being Less Obscure

In some ways, that’s great. People are reading my scholarship more and citations to my articles are increasing. I have been invited to speak at a number of seminars and webinars. I even got to testify before a Congressional subcommittee. It’s nice to know that people care what you think. (That’s not an unmitigated good.