A job posting that may be of interest to some of our readers.

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Job Description
BOSTON UNIVERSITY SCHOOL OF LAW, a top-tier law school with an international reputation, is a community of leading legal scholars, teachers, students, and alumni, dedicated to providing one of the finest legal educations in the world. The breadth and depth of our curriculum, especially our clinical program, as well as our innovative spirit are distinctive in American legal education.

Boston University School of Law is seeking to hire a full-time attorney in its Startup Law Clinic (the “Clinic”). The Clinic is part of BU Law’s Entrepreneurship, Intellectual Property, and Cyberlaw Program, which is a unique collaboration between BU Law and the Massachusetts Institute of Technology. The School of Law believes that the cultural and social diversity of our faculty, staff, and students is vitally important to the distinction and excellence of our academic programs. To that end, we are especially eager to hear from applicants who support our institutional commitment to BU as an inclusive, equitable, and diverse community.

The Clinic represents current students at MIT and BU on matters related to a wide range of legal issues faced by early-stage business ventures. The attorney would be expected to help law students counsel clients and represent students in transactional settings. Clients often present questions of law involving for-profit and nonprofit entity formation, allocations of equity, startup financing, employment and independent contractor issues, ownership of intellectual property, privacy policies, terms of service and other third-party contractual relationships, and trademark and copyright matters. Experience representing startup ventures is considered a plus.

The attorney’s primary responsibility will be to supervise and assist students with direct client representation matters. The attorney will also assist the Clinic Director and Assistant Director in preparing and teaching a year-long seminar for students enrolled in the Clinic, including developing materials, performing research, and coordinating classroom activities and guest presentations. The position is a year-round position and the attorney also would work with student fellows hired to continue the work of the clinic during the summer. As time allows, the attorney would also work with the Clinic Director and Assistant Director to develop generalized legal resources and informational material to inform MIT and BU students on the legal aspects of forming and operating for-profit and nonprofit entities.

The ideal candidate is a member of the Massachusetts bar or is eligible for membership via admission by motion, with at least two years of experience advising clients in a transactional setting, and a willingness to support the work of creative and innovative young clients. Teaching experience or a strong interest in developing as a clinical faculty member is also considered a plus. Exceptional writing, editing, organizational, and managerial skills are required.

The attorney will be hired as a Visiting Clinical Assistant Professor to a two-year contract. The ideal start date is May 24, 2021.

Since we opened our doors in 1872, Boston University School of Law has been committed to admitting and building our classes without regard to race, gender, or religion. We are dedicated to building a just, inclusive, and engaged community of faculty and students. We have more work to do to make our environment more just. Boston University School of Law is committed not only to the ideals of faculty diversity and inclusion but also to the work of creating and implementing practices that combat exclusion and inequity by race, gender, gender identity, disability status, religion, or other identities subject to historical subordination. We strive to foster a more inclusive intellectual culture that represents and encourages a broad range of intellectual traditions and approaches to the law. We welcome expressions of interest from applicants of all identities, intellectual traditions, and perspectives.

DO NOT APPLY THROUGH THE BU WEBSITE:
Applicants should send a letter of interest and a resume to Jim Wheaton, Clinical Associate Professor and Director of the Startup Law Clinic. Email applications are encouraged and should be sent to lclinic2@bu.edu. Applications received on or before January 31, 2021 will be given full consideration.

To learn more about the law school, visit our website at www.bu.edu/law, and to learn more about the Clinic, please visit https://sites.bu.edu/startuplaw/. If you have specific questions about the position, contact Jim Wheaton at jwheaton@bu.edu.

We are an equal opportunity employer and all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability status, protected veteran status, or any other characteristic protected by law. We are a VEVRAA Federal Contractor.

Job Location
BOSTON, Massachusetts, United States
Position Type
Full-Time/Regular
Salary Grade
Competitive

BLPB(PaceLawLogo)

Elisabeth Haub School of Law Faculty Hiring Announcement

The Elisabeth Haub School of Law at Pace University invites applications to fill up to two full-time, academic tenure-track/tenured faculty positions at the rank of assistant professor, associate professor, or professor. The positions will begin in August 2021. Applicants must be committed to providing excellent legal training both in person and online, engaging in meaningful service within the law school and in the broader community, and producing excellent scholarship. Applicants should have teaching and research interests in any of the following areas: environmental law, natural resources law, sustainable business law, energy and climate law, public health law, contracts law, business law, and tax law. Applicants whose interests cover multiple of these areas are particularly encouraged to apply. We welcome applications from candidates interested in doctrinal, experiential, and/or clinical teaching.

Applicants seeking the rank of assistant professor should hold a J.D. from an accredited law school or an equivalent degree from a non-U.S. law school. A successful candidate will have an excellent academic record and demonstrated potential for accomplishment in teaching, scholarship and research, and service.

Applications are encouraged from people of color, individuals of varied sexual and affectional orientations, individuals who are differently-abled, veterans of the armed forces or national service, and anyone whose background and experience will contribute to the diversity of the law school. Pace is committed to achieving completely equal opportunity in all aspects of University life.

Pace University’s Elisabeth Haub School of Law (Pace Law) offers J.D. and Masters of Law degrees in both Environmental and International Law, as well as a series of joint degree programs including a Doctor of Juridical Science (SJD) in Environmental Law. The school, housed on the University’s campus in White Plains, NY, opened its doors in 1976 and has over 8,000 alumni around the world. The school maintains a unique philosophy and approach to legal education that strikes an important balance between practice and theory. For more information visit http://law.pace.edu.

Please apply via https://careers.pace.edu/postings/16869. Applications will be considered on a rolling basis. Direct any questions via email to Appointments Committee Chair, Professor Margot Pollans, mpollans@law.pace.edu.

Came across the abstract below as part of my WestClip Alerts, you can find the SSRN version here.

The approaching anniversary of E.I. duPont deNemours & Co. v. Christopher is the impetus for this exploration and evaluation of the role of “commercial morality” in trade secret misappropriation doctrine. Christopher is the well-known industrial espionage case in which the U.S. Court of Appeals for the Fifth Circuit held that flying an airplane over an under-construction manufacturing facility to take photos of briefly-but-inevitably exposed trade secrets was an “improper means” of accessing a trade secret and was contrary to standards of “commercial morality.”

Commercial morality has played a significant but shifting role in trade secret law over the past seven decades and has become an important part of the contemporary trade secret doctrine lexicon, yet courts and commentators have not explored the meaning of this term. This study fills that gap in the literature by analyzing the origins of the commercial morality doctrine and its proper application in trade secret law. The development of U.S. commercial morality doctrine breaks down into four distinct time periods that illustrate the evolution of the doctrine in trade secret law over time, including the shift from the doctrine’s initial use as a way to justify nascent trade secret law and its liability expansion to the doctrine’s modern equitable role in structuring injunctive relief for misappropriation.

The analysis also shows that while courts invoke commercial morality when adjudicating misappropriation claims, they do not define the meaning of the term or provide reasoned analysis of its application. This is problematic when courts use the term in lieu of careful analysis of the facts and reasoning underlying their decision. Explicit recognition of the equitable nature of commercial morality doctrine would facilitate judicial application of the concept in a principled and effective manner.

Lynda J. Oswald, The Role of “Commercial Morality” in Trade Secret Doctrine, 96 Notre Dame L. Rev. 125 (2020).

This holiday weekend, I continue my blog series on the March of Litigation Limits in Corporate Constitutive Documents (most recent prior posts here, here, and here – and those link back to earlier entries).

In Salzberg v. Sciabacucchi, 227 A.3d 102 (Del. 2020), the Delaware Supreme Court held that corporate charters may contain provisions selecting federal courts as the forum for Securities Act/Section 11 claims under the federal securities laws.  That, of course, raised the question whether non-Delaware courts would treat these provisions as enforceable.

We have two rulings on that so far: In September, there was Wong v. Restoration Robotics, Case No. 18CIV02609 (Cal. Sup. Ct. Sept. 1, 2020), and then, earlier this month, we got In re Uber Technologies Securities Litigation, Case No. CGC19579544 (Nov. 16, 2020) (more details on the Uber case available at Kevin LaCroix’s blog post).

Both courts, correctly in my view, recognized that the enforceability, or not, of these provisions is not a matter of internal affairs and is therefore not governed by Delaware law.  Instead, both applied California law.  After that, both courts examined California contract doctrine and concluded that the provisions were not unconscionable or otherwise unreasonable/void as against public policy, and therefore were enforceable against the plaintiffs. 

What both courts skimmed over, however, is whether corporate charters and bylaws should be treated as contracts in the first place.  As regular readers know, I have argued that there are major differences between the legal regime that governs corporations, and the legal regime that governs contracts.  See Manufactured Consent: The Problem of Arbitration Clauses in Corporate Charters and Bylaws, 104 Geo. L.J. 583 (2016).  Corporate law is entangled with state imposed fiduciary obligations that place limits on directors’ ability to propose, and enforce, forum provisions, and corporate law also places sharp limits on the ability of shareholders to act.  Both of these aspects of corporate doctrine render it a poor analogy to contract law.  For example, corporate law specifies the manner by which bylaws and charters may be amended; contract doctrine has no such strictures.  Corporate law cares about conflicts of interest; contract doctrine expects each party to act selfishly. So there are all kinds of questions raised when corporate provisions are treated as contractual, like: Do directors operate under a conflict of interest when they invoke a litigation limit against a plaintiff?  Should holders of nonvoting shares be treated as equally bound as holders of voting shares?  If the provision is in a director-enacted bylaw, does that affect the analysis of whether a binding contract has been formed?  What if there are supermajority voting requirements, or other limits on shareholder governance rights, which inhibit shareholders’ ability to  modify a forum provision imposed by directors?  What if those limits, while legal in the state of incorporation, would be prohibited under the corporate law of the state whose contract law is being applied? 

Crucially, neither the Wong nor the Uber courts tried to engage these questions.  Uber briefly cited to a California case for the proposition that “whether a set of bylaws constitutes a contract turns on whether the elements of a contract are present,” which is true as far as it goes, but (1) Uber’s forum provision was not in the bylaws – it was in the charter; (2) the case on which the Uber court relied – O’Byrne v. Santa Monica-UCLA Medical Center, 94 Cal. App. 4th 797 (2001) – involved associational bylaws, not corporate bylaws, a difference that apparently escaped the court; and (3) the court’s only examination of whether the “elements of a contract” were met involved a fleeting reference to consent, rather than a full-blown analysis of how the corporate legal framework differs from the contractual one.

All of which is to say, I’m afraid that courts’ failure to grapple with this issue is sleepwalking us into a regime where contract law and corporate law really will collapse, in a manner that will render the latter incoherent.

In his forthcoming article, “Shareholder Wealth Maximization: A Schelling Point,” my MC-Law colleague, Professor Martin Edwards, offers a new contribution to the long-standing debate concerning shareholder wealth maximization and corporate purpose. (See, e.g., here, here, here, and here.) Professor Edwards is not simply offering a rehearsal of the principled justifications for shareholder wealth maximization as the preeminent corporate purpose. Instead, he proposes a descriptive explanation for why it happened to become the received norm. Though Professor Edwards notes that reformers have offered compelling arguments for why shareholder wealth maximization may be suboptimal, he suggests that, as a Schelling point, it continues to function as a value-creating equilibrium term in the corporate bargain. The article will appear in Volume 74 of the St. John’s Law Review (forthcoming, 2021). Here’s the abstract:

Legal scholars have long debated the nature, meaning, efficacy, and even the very existence of the shareholder wealth maximization norm.  Those who model the corporation in terms of its economic efficiency tend to defend it, while those skeptical of it have made a formidable case that corporate governance might be better if managers and directors focused more on worker wealth, environmental sustainability, and various other matters of social importance.  If nothing else, the shareholder wealth maximization norm has been a persistent feature of corporate law and governance. This Article proposes that one reason for the norm’s persistence is that shareholder wealth maximization is a Schelling point.  A Schelling point is a contextually intuitive way for bargainers to coordinate simply by both acting consistently how each would expect the other to act. 

A Schelling point emerges as the solution in bargains where there is more than one value-creating outcome. Confronted with these multiple equilibria, the bargainers often choose the one that is the most contextually unique or intuitive, even if that solution is not optimal.  Shareholder wealth maximization is the Schelling point for public investment in corporations because it is a simple and intuitive way to construct the bargain between the managers and directors on one side and the shareholders on the other.  When the corporate bargain consists of the shareholders exchanging their capital for nothing more than the surplus value of the corporation, the most intuitive solution to the bargain is a tacit agreement to maximize that surplus value. Like any Schelling point, shareholder wealth maximization may not always be optimal, but it is reliably useful.

I look forward to seeing this in print!

Dear BLPB Readers:

The Department of Finance, Insurance, Real Estate and Law, at the University of North
Texas G. Brint Ryan College of Business, invites applications for the appointment of Lecturer
in Business Law starting in the spring 2021 semester or possibly fall 2021. The lecturer will
teach four business law courses per semester, advise students and provide service to the
department, college and university. Teaching will be at the Denton main campus and Frisco
branch campus (face-to-face and/or online/remote) and will include courses such as the
Legal Environment of Business, International Business Law, Real Estate Law, Corporation
Law, and Law for Accountants and Managers.  Complete announcement is here: Download UNT lecturer job ad

For the one BLPB reader who doesn’t also check in on The CLS Blue Sky Blog:

Based on an analysis of public communications around earnings announcements, we find that managers are 34 to 43 percent more likely to cite stakeholder value maximization during periods following earnings announcements that fall short of market expectations. This finding is consistent with concerns that the inability to measure stakeholder value may reduce managers’ accountability for firm performance….

Managers seem to be aware that stakeholder-oriented goals may reduce their accountability for performance, but does the manager’s push for stakeholder objectives sway the board’s evaluation of an underperforming manager? We use CEO turnover-performance sensitivity, a measure used in numerous prior studies of CEO evaluation, to determine whether this behavior produces any observable benefit to the manager. Indeed, we find that it does; CEOs that cite stakeholder value maximization as an objective are less likely to see turnover following poor performance.

https://clsbluesky.law.columbia.edu/2020/11/25/is-stakeholder-value-an-excuse-for-underperfoming-managers/

The Securities and Exchange Commission today voted to propose rules that, on a temporary basis and subject to percentage limits (no more than 15% of annual compensation), dollar limits (no more than $75,000 in three years) and other conditions, would permit an issuer [to] provide equity compensation to certain “platform workers” who provide services available through the issuer’s technology-based platform or system.

The proposed rules reflect the significant evolution that has taken place in the composition and participation of the workforce since the Commission last substantively amended Rule 701 or Form S-8, particularly the development of the so-called “gig economy,” which has resulted in new work relationships.

https://www.sec.gov/news/press-release/2020-293

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I wanted to get there first, but friend, co-blogger, and Nova Southeastern Law colleague Jim Levy beat me to it.  In a blog post for Legal Skills Prof Blog, Jim wrote about the incredible similarities between the game show Hollywood Squares and Zoom teaching.  As I teach my last classes of the semester today–all online (thanks to our dean’s promotion of online teaching for the last two class days of the semester)–I continue to be stuck on  and struck by this similarity.  We are not the only ones to note this comparison, of course.  See, e.g., here and here and here.

I have called the Zoom squares the Hollywood Squares more than once during my class sessions this semester.   Unlike Jim, however, I have not yet endeavored to “play host” in a way that mimics the show.  He recalls (as do I) Peter Marshall’s lengthy stint as the show’s host.  But it does turn out there were others.

As I bid goodbye to the Fall 2020 semester, I leave you with a picture (above) of one of my class meetings earlier this fall.  UT Law alum and entrepreneur Mason Jones (founder of Volunteer Traditions, Inc.) visited our class to talk about the formation and basic governance attributes of the corporation he organized to conduct his business.  It’s a super-fun story–very instructive, too–and he is a humble and entertaining guy.  We were delighted to have him join our Hollywood Squares (and even be spotlighted, as he is here!) for this class day.  (Note that I was wearing a hat and t-shirt from his collection that afternoon while teaching.  Go Vols!)

I am still formulating some additional substantive thoughts on my first full semester of pandemic teaching.  I will post those reflections on a later date or dates.  For today, however, in this Thanksgiving week, I merely want to express gratitude–for the Hollywood Squares that are our Zoom teaching world and, more importantly, for my continued good health, my supportive family, my hardworking students, and my student-focused faculty and staff colleagues.  Without these blessings in my life, teaching through the pandemic would be so very much harder, if not impossible. 

Happy Thanksgiving, y’all. 

#HollywoodSquares 
#GiveThanks

On November 6, I had the privilege of participating in Case Western Reserve Law School’s George A. Leet Business Law Symposium, “Equity Holdings in the Three Index Funds: Anti-Competitive Effects, Fiduciary Duties and Environmental, Social and Governance Issues.”  The agenda for the full symposium is here; I spoke on the first panel, “Fiduciary Obligations of Index Fund Managers,” alongside Jill Fisch, Darren Rosenblum, and Bernard Sharfman (moderated by Anat Beck).  The entire symposium is now online at YouTube, so you can watch and, in particular, admire the care I took with my Zoom background: