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It's been little while since I posted here, but long-time readers of theis blog will not be surprised by the topic.  I am happy to say that, after a lot of work with an exceptional co-author who shares my concerns, Professor Samantha Prince from Penn State Dickinson Law, we have an article documenting the problems with mislabeling LLCs and providing a variety of solutions.  I have been writing on this for nearly 15 years, and unfortunately, not a lot has changed. 

The article, An LLC By Any Other Name Is Still Not A Corporation, is now available on SSRN, here, and has been submitted for publication. In the meantime, we welcome thoughts and comments.  

Here is the abstract: 

Business entities have their own unique characteristics. Entrepreneurs and lawyers who represent them select an entity structure based on the business’s current and projected needs. The differing needs of each business span across myriad topics such as capital requirements, taxation, employee benefits, and personal liability protection. These choices present advantages and disadvantages many of which are built into the type of entity chosen.

It is critically important that people, especially lawyers, recognize the difference between entities such as corporations…

Greetings from SEALS, where I've just left a packed room of law professors grappling with some thorny issues related to ChatGPT4, Claude 2, Copilot, and other forms of generative AI. I don't have answers to the questions below and some are well above my pay grade, but I am taking them into account as I prepare to teach courses in transactional skills; compliance, corporate governance, and sustainability; and ethics and technology this Fall.

In no particular order, here are some of the questions/points raised during the three-hour session. I'll have more thoughts on using AI in the classroom in a future post.

  1. AI detectors that schools rely on have high false positives for nonnative speakers and neurodivergent students and they are easy to evade. How can you reliably ensure that students aren't using AI tools such as ChatGPT if you've prohibited it?
  2. If we allow the use of AI in classrooms, how do we change how we assess students?
  3. If our goal is to teach the mastery of legal skills, what are the legal skills we should teach related to the use of AI? How will our students learn critical thinking skills if they can

…

Last Friday, I had the privilege of speaking, with other colleagues, at the 2023 Stetson Law Review Symposium on "Elon Musk and the Law."  (See the flyer on the program, below.)  This symposium grew out of a discussion group I organized at the 2022 Southeastern Association of Law Schools Conference.  I posted about it here back in May of last year.

I could not have been happier with the way the symposium worked out.  The Stetson Law students, faculty, and administration were well organized, kind, and fun–a total pleasure to work with.  And I got excellent questions and feedback on my early draft paper, Representing Elon Musk, which focuses attention on the lawyer-client relationship under the American Bar Association's Model Rules of Professional Conduct.  I look forward to seeing the final published proceedings in two forthcoming books of the Stetson Law Review.

*               *               *

Stetson2023(flyer)

The following came to me from Patricia Wilson, Associate Dean and Professor of Law, Chair of the Faculty Appointments Committee at Baylor Law:

Baylor Law is accepting applications for two lecturer positions in our Legal Analysis, Research and Communication (LARC) program, as described below, to begin no later than August 1, 2023.  Please share with anyone you believe may be interested.

Lecturer (Transactional Drafting)

Candidates must possess a juris doctor. You will be asked to provide a letter of interest; curriculum vitae; transcripts, a list of three references in the application process, and two writing samples demonstrating the candidate's writing style.  Salary is commensurate with experience and qualifications.

The selected individual will have responsibility for teaching in the Legal Analysis, Research & Communications (LARC) program. Responsibilities include working collaboratively with other faculty members of the Baylor Law Writing Program to create, teach and grade assignments for the LARC 4 course (Transactional Drafting) and coordinating all of the writing efforts across all three years of the curriculum to ensure consistency and best management of resources. The ideal candidate will have at least three years of transactional legal writing experience, including drafting and analyzing a variety of different contracts and business entity governing documents.

I wanted to share with BLPB readers that two of my articles that I've mentioned in previous posts (here and here) have now been published.  I've posted them to SSRN.  Comments welcome!

An abstract for Ethics of Legal Astuteness: Barring Class Actions Through Arbitration Clauses, written with Daniel T. Ostas and published in the Southern California Interdisciplinary Law Journal is below, and the article is here.

Recent Supreme Court cases empower firms to effectively bar class
action lawsuits through mandatory arbitration clauses included in
consumer adhesion and employment contracts. This article reviews
these legal changes and argues for economic self-restraint among
both corporate executives and corporate lawyers who advise them.
Arbitration has many virtues as it promises to reduce transaction costs
and to streamline economic exchange. Yet, the ethics of implementing
a legal strategy often requires self-restraint when one is in a position
of power, and always requires respect for due process when issues of
human health, safety, and dignity are in play.

An abstract for Banking on the Cloud, written with David Fratto and Lee Reiners, and published in Transactions: The Tennessee Journal of Business Law is below, and the article is here.…

I am just back from the 2019 Southeastern Association of Law Schools (SEALS) conference.  I participated in several different kinds of activities this year.  This post reports out on each.

I first served as a participant in a series of discussion groups tailored to provide information to aspiring law professors.  The attendees included newly minted fellows and VAPs, mid-to-later-career lawyers/judges looking to switch to full-time law faculty (some already adjuncts or visitors), and (in general) law practitioners testing the waters for possible engagement with the Association of American Law Schools faculty recruitment process.  SEALS has served selected prospective law professors with a specialized track of preparative programming for a number of years.  This set of discussion groups represents an extension of that type of programming, on a more general informational level, to a wider audience of folks interested in careers in law teaching.

I also presented in a discussion group, sponsors by West Academic, on "Teaching to Engage."  Steve Friesland of Elon Law moderated the session.  I shared some of my "first class" and assessment simulations for business law doctrinal and experiential courses.  I learned from many others who shared their own ways of engaging students.

Christopher G. Bradley at University of Kentucky College of Law has posted his paper, Business Entities as Skeleton Keys.  The paper was also selected for the 2019 AALS Section on Agency, Partnership, LLCs and Unincorporated Associations program, Respecting the Entity: The LLC Grows Up.  

Chris notes the use of business entities to accomplish goals not attainable previously and the use of entities "to accomplish customized transactions and evade legal restrictions that would otherwise prevent them."  His observations and insights are good ones, and his paper is definitely worth the read.  I can't help but think that some of this is occurring more because of an increasing comfort with entities and a willingness to engage in creative transactions. We're seeing in beyond the use of entities, too, with the rise of derivatives over the last 20 or so years, not to mention cryptocurrencies.  Anyway,  it's a good paper and I recommend it. 

Here's the abstract:

This Article identifies the increasingly important phenomenon of what I term “skeleton key business entities” and discusses the ramifications of their rise. Modern business entities, such as LLCs, are increasingly created and deployed to accomplish customized transactions and evade legal restrictions that would otherwise prevent them. Rather

…

I have been told there may be some flexibility on the March 1 deadline.

The UMKC Law Review is pleased to announce a call for submissions relating to the law surrounding distributed ledger ("blockchain") technology. Selected papers will be published in the Special Topics Symposium, Summer 2019 edition of the UMKC Law Review. This symposium invites proposals for papers that explore the legal and regulatory issues involved in blockchain technology. Today, blockchain technology is used to build tools and infrastructure that help lawyers draft contracts, record commercial transactions, and verify legal documents. In general, investments in blockchain technology has surged over the past year, inviting both legitimate businesses and modern-day scammers. To date, regulatory agencies have yet to determine a consistent approach to the technology that protects the public while not stifling innovation. Issue 1 of UMKC Law Review’s 88th Volume will explore these and related topics with the goal of advancing awareness of blockchain technology and cryptoassets. Articles and essays of all lengths and papers by single authors or multiple authors are invited. Preference will be given to works between 5,000 and 25,000 words. To be accepted for publication in UMKC Law Review, articles must not have been previously…

We’re a month away from our second annual Business Law Professor Blog CLE, hosted at the University of Tennessee on Friday, September 14, 2018. We’ll discuss our latest research and receive comments from UT faculty and students. I’ve entitled my talk Beyond Bitcoin: Leveraging Blockchain for Corporate Governance, Corporate Social Responsibility, and Enterprise Risk Management, and will blog more about that after I finish the article. This is a really long post, but it’s chock full of helpful links for novices and experts alike and highlights some really interesting work from our colleagues at other law schools.

Two weeks ago, I posted some resources to help familiarize you with blockchain. Here’s a relatively simple definition from John Giordani at Forbes:

Blockchain is a public register in which transactions between two users belonging to the same network are stored in a secure, verifiable and permanent way. The data relating to the exchanges are saved inside cryptographic blocks, connected in a hierarchical manner to each other. This creates an endless chain of data blocks — hence the name blockchain — that allows you to trace and verify all the transactions you have ever made. The primary function of a…

Call for Papers for

Section on Agency, Partnership, LLCs and Unincorporated Associations on

Respecting the Entity: The LLC Grows Up

at the 2019 AALS Annual Meeting

The AALS Section on Agency, Partnership, LLCs and Unincorporated Associations is pleased to announce a Call for Papers from which up to two additional presenters will be selected for the section’s program to be held during the AALS 2019 Annual Meeting in New Orleans on Respecting the Entity: The LLC Grows Up.  The program will explore the evolution of the limited liability company (LLC), including subjects such as the LLCs rise to prominence as a leading entity choice (including public LLCs and PLLCs), the role and impact of series LLCs, and differences in various LLC state law rights and obligations. The program will also consider ethics and professional responsibility and governance raised by the LLC. The Section is particularly seeking papers that discuss the role of the LLC as a unique entity (or why it is not).

The program is tentatively scheduled to feature:

  • Beth Miller, M. Stephen and Alyce A. Beard Professor of Business and Transactional Law, Baylor Law
  • Tom Rutledge, Member, Stoll Keenon Ogden PLLC, Louisville, KY

Our Section is proud to…