The Drexel University Thomas R. Kline School of Law invites applications for a two Visiting Assistant Professor positions.   One position is dedicated to a faculty member who will teach and research in the area of tax.  The other position is open, with a preference for someone who does research that touches on legal implications of new technology and/or someone open to teaching Torts.  Each position will last two years and VAP’s are expected to fully participate in the intellectual life of the law school.

We seek candidates who hold (at minimum) a JD or appropriate equivalent degree.  We are particularly interested in candidates embarking on an academic career.  The Kline School of Law is committed to recruiting, developing, retaining, and rewarding faculty members who bring scholarly interests and life experiences that contribute to the diversity and success of our students, our University, and our communities.

Drexel University, founded in 1891, is an R1 comprehensive research institution.  Drexel established its law school in 2006, and it has rapidly developed a reputation for innovative scholarship across disciplines, a diverse portfolio of academic programs, and a focus on civic engagement.  The Kline School of Law is home to the Center for Law and Transformational Technology and the Center for Law, Policy and Social Action.   The law school has a vibrant scholarly culture, including an active workshop series.  Kline Law has moved up steadily in the rankings and is now ranked #81 by U.S. News.

Applications for this position should include a CV and cover letter.

Review of applications will begin immediately, and prompt application is encouraged.  Questions should be directed to Professor Bret Asbury. 

Apply online via Drexel’s HR portal: https://careers.drexel.edu/en-us/job/497570/visiting-assistant-professor-kline-school-of-law.

I begin teaching again on Wednesday.  The past few weeks have been occupied with course preparation as well as catching up on editing, writing, and other tasks abandoned during a month+ focused on the grading period, attentiveness to  a downturn in my dad’s health, Christmas, a nasty cold, and intensive physical therapy.  As I have focused on the spring semester, I continue to be concerned about helping to teach my students critical and intensive thinking, in and outside legal reasoning.  On this day honoring the life and many legacies of Dr. Martin Luther King Jr., I am inspired in my work by this passage from his writing–specifically, Chapter 1 of Strength to Love (1963; Pocket Book ed. 1964):

 . . . The tough mind is sharp and penetrating, breaking through the crust of legends and myths and sifting the true from the false. The tough-minded individual is astute and discerning. He has a strong austere quality that makes for firmness of purpose and solidness of commitment.

Who doubts that this toughness is one of man’s greatest needs? Rarely do we find men who willingly engage in hard, solid thinking. There is an almost universal quest for easy answers and half-baked solutions. Nothing pains some people more than having to think.

The last three sentences of this quote are especially meaningful to me.  The world is full of “easy answers and half-baked solutions.”  I laugh when a state or  federal legislator sends me survey asking me, e.g., whether I support the taxation of X (as one once did).  How can I answer that question (except in a knee jerk or heuristic-driven process) if I do not know other things first (including whether something else may be taxed instead or whether services may be cut)?  And I am pained when students rely on commercial case briefs and caselaw summaries rather than personally digesting and dissecting the text of even a case excerpt in a casebook.  Suffice it to say, it is difficult to have an in-depth or fully engaged conversation with a student who has not read and thought through the key elements of a particular judicial opinion.

Dr. King may be right that there are relatively few folks “who willingly engage in hard, solid thinking.”  But my hope is that many of those who do are and will continue to be lawyers (who lead in our society both in and outside the profession) and that at least a few of those lawyers will have been my students.  I know other law faculty that feel the same way.

Encouraging law students to engage with the legal education process in a way that is productive to willing engagement with “hard, solid thinking” is certainly not easy when easy-to-read summary resources are widely available.  But an investment in that encouragement is worth the time and energy, in my view.  Lawyers can best fulfill their professional promise and responsibility by thinking in a way that is “sharp and penetrating, breaking through the crust of legends and myths and sifting the true from the false.”

So, here’s to the new semester.  I start with renewed energy to work with my students to get them what they need to succeed in and beyond law school, including by motivating each of them to develop a “sharp and penetrating” mind–a “tough mind.”  Sustaining that type of energy in a pandemic-infused, understaffed world will surely be a challenge. But I am up for it!  I wish all law professors well in their pursuit of effective teaching.

My law school classmate is the General Counsel of the Small Business Administration and is looking for a deputy. If I didn’t love my work, I would apply myself.

Here’s how she describes the role:

“I am searching for my next Deputy General Counsel. What’s the job? The right person will be looking to be the managing partner of a mid-sized law practice (125+ persons) in which the sole client has a $1 trillion portfolio and a mission of serving the needs of small businesses throughout the nation.”

If you want the actual official job description, see below. 

This Deputy General Counsel reports to the General Counsel. The incumbent provides legal counsel and services to the Administrator and other Agency officials and is responsible for dispensing legal advice on a myriad of issues involving, among other things, litigation, legislation, procurement, appropriations, employment law, labor relations, and financial law. The incumbent is responsible for the day-to-day operations of the Office of General Counsel.

Responsibilities

  • Directs, plans, and executes oversight of the day-to-day operations of the Office of General Counsel.
  • Provides legal interpretation and application of the Small Business Act and all related laws and regulations affecting the programs and operations of SBA.
  • Resolves novel and complex legal problems which become precedent opinions to guide operating and legal staffs at headquarters and in the field.
  • Serves as a liaison between SBA and top legal officers of other Government departments and agencies as well as with those on Congressional Committees, especially the House and Senate Small Business Committees.
  • Confers with individual Senators and Congressmen concerning the legal aspects of problems with their small business constituents.
  • Provides legal support to the Agency when responding to inquiries from Congress, other Federal agencies, state entities, and municipalities.

Benefits

In addition to an annual salary, a career with the U.S. Government provides employees with a comprehensive benefits package. As a federal employee, you and your family will have access to a range of benefits that are designed to make your federal career very rewarding. Please visit the posted announcement on USAJOBS for additional information.

How to Apply

If you are interested in the position, please visit the posted announcement on USAJOBS.gov (https://www.usajobs.gov/GetJob/ViewDetails/630142800) . Resumes will be accepted through February 7, 2022, so candidates are encouraged to apply immediately.

All applications must be submitted through the posting on USAJOBS. If you have questions, please submit your questions to the Agency contacts listed on the posted announcement.

 

 

Okay, here I go, diving into Seafarers Pension Plan v. Bradway, recently out of the Seventh Circuit.  The appeal was argued in November 2020, which means this opinion took about 100 years to come down in Seventh Circuit time, and, well, to be honest, I’m not sure they worked out all the kinks.

I blogged extensively about the district court decision in this case here (although in the interests of full disclosure I should probably mention I spoke with the plaintiffs’ attorneys about the appeal, after the blog post went up).  The too-short version is that Boeing had a bylaw purporting to require that all derivative actions be filed in Delaware Chancery.  Plaintiffs filed a derivative action in federal court alleging Exchange Act claims under Section 14(a).  According to the plaintiffs, the Boeing defendants solicited shareholder votes in favor of their own reelection and compensation with false statements in the corporate proxy about the development of the 737 Max.  Boeing moved to dismiss in favor of Chancery due to the bylaw.   This was awkward because state courts, like Delaware Chancery, do not have jurisdiction to hear Exchange Act claims, and so enforcement of the bylaw in this case would be tantamount to a waiver of the claim.  But the Exchange Act prohibits predispute waiver of claims, and so the plaintiffs argued that the bylaw was invalid as applied here.

The district court ruled in Boeing’s favor and dismissed.  The plaintiffs appealed to the Seventh Circuit and, simultaneously, filed an action in Delaware Chancery alleging that the bylaw, as applied here, violated Delaware law.  The Delaware case (Docket No. 2020-0556-MTZ) was stayed in favor of the Seventh Circuit, and last week, the Seventh Circuit reversed and remanded, by a 2-1 vote, with Judge Easterbrook dissenting.

[Warning: Very long discussion under the cut, which will get unfortunately into the legal weeds at times, can’t be helped]

Continue Reading The battle’s done, and we kinda won

Will Moon recently posted an article forthcoming in the Duke Law Journal to SSRN.  It’s a fascinating, accessible read and thoughtfully explores privacy as a functional feature of modern business entities.  Many states, Nevada included, allow the principal of a business entity to conduct business without ever disclosing the principal’s identity.  Most discussions about using business entities to cloak individual identity focus on how the wealthy and powerful use privacy to avoid accountability and evade responsibility.  Yet not enough attention has been paid to the other side of the coin, how privacy enables economic activity for persons with stigmatized identities or in areas where violent retaliation against a business’s disclosed principals may functionally force it to close.

A few years ago, Ann McGinley and I wrote about how some entrepreneurs will trot out persons with favored identities to access capital.  Because white men tend to raise more money, some entrepreneurs will strategically affiliate with white men to raise capital.  A proposal to create an agency for these purposes recently circulated online:

 

While our article dealt with deploying identity as a facade to raise capital, Moon explores how obscuring identity facilitates business operations.  He showcases different examples of how privacy enables economic activity from incubating morally contestable enterprises such as operating clinical trials for abortion drugs to evading “racialized” market biases.  The article even details how survivors of intimate-partner abuse use business entities to protect their identities while working.  

The paper is a significant contribution to an often unexplored area of business law.  Most discussions of business entities focus on asset partitioning and limited liability.  These essential features matter.  Yet for many people, privacy may also be a significant concern.  Moon’s paper provides a balanced exploration of the merits and risks of allowing people to shield their identities behind business entities.  

Dear BLPB Readers:

“GEORGIA STATE UNIVERSITY invites applications for a non-tenure-track appointment in Legal Studies, effective fall 2022 in the Department of Risk Management and Insurance at the J. Mack Robinson College of Business.  Rank is open, but we expect to hire at the level of Clinical Assistant Professor (non-tenure track) or Clinical Associate Professor (non-tenure track). The salary level and course load are competitive.

 JOB QUALIFICATIONS: Candidates must have a J.D. degree from an ABA accredited law school, the capability to publish research in refereed pedagogical and/or professional journals, and demonstrated potential to be an outstanding teacher. Significant professional experience as a lawyer is also highly valued.  While we welcome applications from candidates in all areas of business law, we would be especially interested to hear from applicants who have a background in insurance, innovation, or entrepreneurship, and those who could help advance the Robinson College of Business’s equity and inclusion initiatives and programs.“

The full job posting is here: Download GSU Legal Studies Clinical Faculty Position

Yesterday evening, the 2022 Association of American Law Schools Annual Meeting concluded.  Hosted on a platform using Zoom, the conference spanned five days.  It was a meeting filled with super papers and discussion, many worthy honorees, and a little bot of networking and fellowship (not as satisfactory over Zoom, of course).

I was invited by BLPB co-blogger John Anderson and Martin Edwards to be part of an exciting discussion group: A Very Online Economy: Meme Trading, Bitcoin, and the Crisis of Trust and Value(s) – How Should the Law Respond?  [Editor’s note: a hypertext link to John’s earlier blog post was added post publication.]  Participants were asked to write short papers on the topic and share their theses during the session at the meeting. Initially, I planned to write on something involving substantive doctrinal law stemming from the meme stock phenomenon or my work in crowdfunding, blockchains, or insider trading.  But the more I thought about it (and the topic), and with the conference’s programs honoring the life and legacy of Deborah Rhode in the foreground of my mind, the more I became convinced that I wanted to write/speak about lawyer leadership in this area at this time.

The short paper that resulted from that thinking, Leading as Lawyers in an Era of Rapid Technological Change, Limited Trust, and Individualism, can be found here.  It is not worth an SSRN post; it is just a thought piece.  But I am interested in your feedback, so I am sharing a link to it here.  The essential thesis is summarized in my conclusion paragraphs, pasted in below:

Lawyers and legal academics who desire to be change leaders have unique knowledge and experience relevant to the creation of a vision for legal or regulatory change that responds to ongoing business transformations. We know the existing legal and regulatory landscape and can observe its application in day-to-day business dealings. As businesses rapidly evolve in an increasingly digital world, the expertise of business lawyers and business law scholars is important to legal and regulatory change as well as legal and regulatory compliance.

Yet, successful, sustainable change in U.S. law and regulation has proven somewhat difficult. Among other things, we are living in an era of limited trust and increased individualism. These socio-political attributes of current life in the United States appear to be barriers to implementing even the most swell-reasoned legal arguments for change.

A possible way forward involves the use of proven patterns of efficacious change leadership that have been observed in private businesses and documented in a robust body of literature—especially academic literature authored by business management scholars. This literature deserves our attention and study, as does its application to effective processes of legal and regulatory change. There is no magic recipe for leading change, especially in the current environment. But merely having and sharing solid ideas for positive legal and regulatory change has never been enough to ensure the adoption and entrenchment of that change. If we want to be change leaders in the current, rapidly evolving business ecosystem, business lawyers and business law academics must consider and engage process. The ideas shared here are offered as a means of encouraging that consideration and engagement.

The paper admittedly results in part from the feeling that many worthy ideas for legal or regulatory change never get implemented because the right process was not employed.  Perhaps you also have felt this frustration at some point . . . .  As a result, in the paper, I end up encouraging the implementation of specific, staged, sequenced steps to make sustainable legal or regulatory change.

Among other things, I share a few pieces of the referenced academic literature on change leadership–a literature that I have used in other work.  It is a growing body of work.  And it keeps drawing me back.

The paper is five pages.  If any of what I have said in this post piques your interest and you deign to read the paper, let me know if you have any thoughts.  My idea is a simple idea; perhaps too simple . . . .

Roberto Tallarita has revised The Limits of Portfolio Primacy on SSRN (here). An excerpt of the abstract follows.

According to a theory that is gaining increasing support, we should expect large asset managers (and, in particular, index fund managers) to become “climate stewards” and force companies to reduce their impact on climate change. According to this theory, by maximizing the value of their entire portfolio (portfolio primacy) rather than the value of the individual company (shareholder primacy), index fund managers are incentivized to reduce climate externalities and therefore to steer companies toward decarbonization. This Article offers the first systematic critique of this theory and identifies four crucial limits that undermine its practical impact: mispricing of climate mitigation, portfolio biases, fiduciary conflicts, and insulation from index funds stewardship…. [C]limate stewardship would create unsolvable fiduciary conflicts on multiple levels: between fund managers and fund investors; between large asset managers and undiversified shareholders; and between corporate directors and the individual company….

Edit: After I drafted this post, the Seventh Circuit finally decided Seafarers Pension Plan v. Bradway.  I blogged about the district court decision in that case here, and maybe I will eventually find the strength to draft a full blog post on CA7’s new decision reversing the district court, but in case I don’t because I’m screaming on the inside and nothing matters anymore, here’s my tweet thread on the subject. 

Meanwhile, back to today’s intended post: 

 

I’ve blogged here a couple of times about courts’ struggles to evaluate allegations of scienter against a corporate defendant in a securities fraud case, and in particular, the problem of conflating pleading standards with the substantive definition of scienter.

Which is why I was so happy to see the court get it right in Acerra v. Trulieve Cannabis Corp., 2021 WL 6197088 (N.D. Fla. Dec. 30, 2021); all the more impressively done because, as far as I can tell from the briefing, the plaintiff didn’t make much of a corporate scienter argument and instead focused on the scienter of individual defendants.

The essence of the plaintiffs’ claim was that a medical marijuana company misled investors about the quality of its grow facilities.  The court dismissed allegations based on certain statements for failure to allege falsity; when that was done, a single actionable statement remained, namely, that Trulieve’s website falsely represented that its products were “hand-grown and specially cultivated in a state-approved, climate-controlled environment to ensure purity and safety. We leave nothing to chance while letting nature do her work.”

At that point, the court turned to the question of scienter, and concluded that plaintiffs failed to show that the individual defendants – the company’s CEO and CFO – drafted or even knew about the website text; thus, the corporate defendant could not be held liable vicariously based on the officers’ misconduct.  But the court did not stop there; it added:

Trulieve could of course be held liable based on acts or omissions not just of the named individual defendants but also based on acts or omissions of another officer or employee, so long as the officer or employee acted with the requisite state of mind. But here, as in Mizzaro [v. Home Depot, Inc., 544 F.3d 1230 (11th Cir. 2008)], the plaintiffs have not alleged scienter of the corporate defendant based on the knowledge or intent of any other officer or employee. The second amended complaint does not allege the existence of any individual, whether known or unknown, who both drafted or approved the website’s “climate-controlled” statement and acted recklessly or with intent to defraud. And it is by no means obvious—there is no “strong inference”—that any such person exists. The second amended complaint gives no reason to believe any single person must both have been aware of the website’s precise language, on the one hand, and aware of precisely what kind of facilities were out in the field.

I don’t have an opinion on whether the court reached the right outcome on these facts, but the analysis is exactly what I’d hoped courts would undertake.  The court asked whether the complaint created a strong inference that any agent of Trulieve, acting with scienter, drafted the false statement; the court entertained the possibility that such an agent might not be a defendant, and might exist even if their identity was unknown to the plaintiffs at pleading; recognized that corporate liability might attach if such an agent did exist; but concluded that the complaint did not raise a strong inference of that possibility.

I’m so pleased.

We just wrapped up a fascinating discussion group titled “A Very Online Economy: Meme Trading, Bitcoin, and the Crisis of Trust and Value(s)–How Should the Law Respond?” as part of the AALS 2022 Annual Meeting. I co-moderated the group with Professor Martin Edwards (Belmont University School of Law). Here’s the description:

Emergent forces emanating from social and financial technologies are challenging many underlying assumptions about the workings of markets, the nature of firms, and our social relationship with our economic institutions. Blockchain technologies challenge our assumptions about the need for centralization, trust, and financial institutions. Meme trading puts pressure on our assumptions about economic value and market processes. Environmental and social governance initiatives raise important questions about the relationship between economic institutions and social values. These issues will certainly drive policy debates about social and economic good in the coming years.

The group gathered some amazing presenters and commentators for the discussion, including:

The discussion was lively and informative, and I look forward to seeing the final versions of these projects in print!