The University of Miami School of Law seeks entry-level and tenured candidates to join our intellectual community beginning in the 2019-2020 academic year. While these faculty hires are open to a variety of teaching and scholarly interests, the Law School has particular needs in Environmental Law and Business Law.
 
The Law School is committed to diversity of all kinds in its faculty, students, and staff and encourages applications from candidates who will increase the diversity of the Miami Law community.  The University of Miami is an Equal Opportunity Employer that does not discriminate on the basis of race, color, national or ethnic origin, sex, sexual orientation, gender identity and gender expression, disability, religion, age, status in the uniformed services of the United States (including veteran status), marital status, status as a victim of domestic violence, citizenship status, genetic predisposition, carrier status, or any other classification protected under federal, state, or local law.
 
Entry-level applicants are encouraged to use the AALS submission process to apply.  Lateral applicants may submit a cover letter, curriculum vitae, draft work-in-progress, and teaching evaluations (if available) in PDF format to Professor Drew Dawson, Chair, Faculty Appointments Committee, at adawson@law.miami.edu.

It’s not just judges and lawyers. Big banks, too, are apparently not committed to clear and accurate language when it comes to LLCs (limited liability companies).  A recent antitrust case provides an excerpt from a Barclays Settlement Agreement that states:

Paragraph 2(cc) of the Barclays Settlement Agreement defines “Person” as: “An individual, corporation, limited liability corporation, professional corporation, limited liability partnership, partnership, limited partnership, association, joint stock company, estate, legal representative, trust, unincorporated association, municipality, state, state agency, any entity that is a creature of any state, any government or any political subdivision, authority, office, bureau or agency of any government, and any business or legal entity, and any spouses, heirs, predecessors, successors, representatives, or assignees of the foregoing.” Barclays Settlement Agreement ¶ 2(cc).

In re LIBOR-Based Fin. Instruments Antitrust Litig., No. 11 CIV. 5450, 2018 WL 3677875, at *20 (S.D.N.Y. Aug. 1, 2018) (emphasis added). 
 
I checked to see if this was the court’s error, but I found a link to what appears to be the settlement agreement, and it, too, includes “limited liability corporation” in paragraph (cc)’s definition.  Given that it is an error in the original, the judge, or at least the judge’s clerks, missed an opportunity for an appropriately placed “[sic],” which more than a few lawyers in my experience have relished the opportunity to insert. 
 
I did a little poking around and found that some Barclays’ divisions know and honor the distinction.  For example, a 2014 settlement agreement between  Federal Housing Finance Agency and “Barclays Bank PLC, Barclays Capital Inc. (‘Barclays Capital’), and Securitized Asset Backed Receivables LLC (collectively, the Barclays Corporate Defendants’)” (as well as some other defendants) provides (emphasis added): 

(h) “Person” means an individual, corporate entity, partnership, association, joint stock company, limited liability company, estate, trust, government entity (or any political subdivision or agency thereof) and any other type of business or legal entity . . . .

I guess beyond judges and lawyers, I should extend my An LLC Checklist Proposal to bankers, as well.  We can get this right, I swear.  It’s just going to take some work. 
 

Today, I am at the Southeastern Association of Law Schools (“SEALS”) annual conference working with aspiring law professors.  More on that and other aspects of SEALS next week.  But it seems a number of law schools are hiring for the 2019-20 academic year, some specifically looking for business law folks and others looking for MVPs that may include business law folks.  Set forth below are several of the messages I have gotten in the past few weeks.  Hopefully, I have managed not to repeat a notice someone else already has posted . . . .

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Professor of Law / Assistant (Acting) Professor of Law
University of California, Irvine School of Law

The University of California, Irvine School of Law invites applications for tenured and non-tenured faculty positions beginning August 1, 2018.

UC Irvine School of Law is a visionary law school focused on training talented and passionate lawyers and driven by professional excellence, intellectual rigor, and a commitment to enrich our communities through public service. UCI Law, founded just ten years ago, is the newest public law school in California in early 50 years and currently is ranked 21st nationally by U.S. News & World Report.

The School, ranked 6th in the nation for scholarly impact, is highly regarded for its faculty and expert practical training. UCI Law offers a distinct, innovative approach to legal education that features experiential learning and interdisciplinary studies. Committed to values of public service, excellence in scholarship and teaching, and fostering a diverse, inclusive community, UCI Law is home to distinguished faculty and passionate, talented, and socially conscious students.

Applicants must hold a J.D. degree or equivalent, or a Ph.D. from an accredited institution and have demonstrated potential for outstanding teaching and scholarly achievements. Scholars from all areas of interest are encouraged to apply.

For more information about UCI Law, visit: www.law.uci.edu.

Interested applicants should submit formal materials using UC Irvine’s online application system, AP Recruit:

For tenured faculty position: https://recruit.ap.uci.edu/apply/JPF04840
For tenure-track faculty position: https://recruit.ap.uci.edu/apply/JPF04865

The University of California Irvine is an Equal Opportunity/Affirmative Action employer advancing inclusive excellence. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability, age, protected veteran status, or other protected categories covered by the UC nondiscrimination policy. A recipient of an NSF ADVANCE award for gender equity, UCI is responsive to the needs of dual career couples, supports work-life balance through an array of family-friendly policies, and is dedicated to broadening participation in higher education.

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WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2019.

We are particularly interested in corporate law, property law, and criminal law. Candidates must have at a minimum a J.D., a PhD, or the equivalent in a related field. In addition, candidates should have strong scholarly potential and a commitment to excellence in teaching. Duties will include teaching assigned courses, researching and publishing scholarly work, advising students, and participating in law school and university service. The strong candidate will demonstrate the ability to create inclusive classrooms and environments in which all students can learn and thrive.

The committee will be reviewing applications submitted through the AALS Faculty Appointments Register, but is willing to consider materials outside of the FAR process. Although there is no deadline, applications will have the best chance of full consideration if they are received by August 21, 2018. Application materials should include a cover letter, a resume which includes at least 3 references, a list of publications and up to three pieces of scholarly work. Materials should be submitted to Professor Kevin Collins, Chair of Appointments Committee, Washington University School of Law, by emailing them to lawappts@wustl.edu.

Washington University in St. Louis is committed to the principles and practices of equal employment opportunity. It is the University’s policy to recruit, hire, train, and promote without regard to race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status, disability, or genetic information.

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UNIVERSITY OF CALIFORNIA AT DAVIS SCHOOL OF LAW invites applications for two entry-level, tenure-track positions to begin July 1, 2019. Our hiring needs are flexible. We seek applications from candidates with scholarly distinction or promise and a commitment to excellence in teaching.

All candidates must apply through the UC Recruit system at the following link: https://recruit.ucdavis.edu/apply/JPF02341. In addition, as part of their application, candidates must include a Statement of Contributions to Diversity. Information about the Statement can be found at http://academicaffairs.ucdavis.edu/diversity/equity_inclusion/index/. For full consideration, applicants should apply by September 27, 2018, although we recommend that you submit your materials as soon as possible.

Candidates must have a J.D. or equivalent degree. We require a cover letter, curriculum vitae, research agenda, teaching evaluations and/or transcripts, writing sample, and contact information for three references at this time. Please note that we may require further documentation at a future date, including, but not limited to, letters of recommendation, which will be treated as confidential per University of California Policy and California state law.

Please direct questions to Professor Peter Lee, Chair of the Faculty Appointments Committee, via email at facultyappointments@law.ucdavis.edu.

Inquiries about visiting positions should be submitted to Senior Associate Dean for Academic Affairs Afra Afsharipour, also at facultyappointments@law.ucdavis.edu.

The University of California is an Equal Opportunity/Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, disability, age or protected veteran status. For the complete University of California nondiscrimination and affirmative action policy, see http://policy.ucop.edu/doc/4000376/NondiscrimAffirmAct.

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UKLawLogoASSISTANT PROFESSOR OF LAW

THE UNIVERSITY OF KENTUCKY COLLEGE OF LAW invites applications for one, possibly two, entry-level, tenure-track faculty positions at the rank of Assistant Professor, beginning in the Fall of 2019. The College is seeking to fill needs in almost any area of law. Some key areas include Criminal Law, Criminal Procedure, Property, Civil Procedure, Contracts, Family Law, Securities Regulation, and Trusts and Estates. However, we are interested in considering candidates who teach and/or research in other areas that are not included in this sample list of priorities. The College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and a demonstrated potential for excellence in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.

The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, minorities, veterans, women, and members of other underrepresented groups are encouraged to apply.

Applicants should send a letter of application and resume to Jennifer Bird-Pollan, Chair, Faculty Appointments Committee, by mail at the University of Kentucky College of Law, 213 Mandrell Hall, Lexington, KY 40506-0048, or by email to the administrative assistant for the Committee at alina.emen@uky.edu.

To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at http://ukjobs.uky.edu/postings/154559.

UKLawLogoASSOCIATE PROFESSOR OR PROFESSOR OF LAW

THE UNIVERSITY OF KENTUCKY COLLEGE OF LAW invites applications for one experienced, tenured or tenure-track faculty position at the rank of Associate Professor or Professor, beginning in the Fall of 2019. The College is seeking to fill needs in almost any area of law. Some key areas include Criminal Law, Criminal Procedure, Property, Civil Procedure, Contracts, Family Law, Securities Regulation, and Trusts and Estates. However, we are interested in considering candidates who teach and/or research in other areas that are not included in this sample list of priorities. The College of Law is an important part of a major research university and offers a collegial and supportive atmosphere for its faculty, staff, and students. Applicants should have a J.D. or equivalent law degree, a record of high academic achievement, and distinguished accomplishment in teaching and in scholarly productivity. Salary for this position will be commensurate with experience.

The University of Kentucky is an Equal Opportunity University that values diversity and inclusion. Individuals with disabilities, minorities, veterans, women, and members of other underrepresented groups are encouraged to apply.

Applicants should send a letter of application and resume to Jennifer Bird-Pollan, Chair, Faculty Appointments Committee, by mail at the University of Kentucky College of Law, 213 Mandrell Hall, Lexington, KY 40506-0048, or by email to the administrative assistant for the Committee at alina.emen@uky.edu.

To receive consideration for this position, applicants must apply through the University of Kentucky’s Integrated Employment System at http://ukjobs.uky.edu/postings/154567.

The Southeastern Association of Law Schools (SEALS) Annual Meeting is upon us. If you are free from 9-11 AM this coming Saturday, Aug. 11, please stop by our discussion group on The Role of Corporate Personhood in Masterpiece Cakeshop. Don’t worry about the fact that SCOTUS ignored the personhood issue — we’ll have plenty to talk about.

Here is a summary of the program:

In the United States Supreme Court case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the issue presented is: “Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.” A group of corporate law professors has filed an amicus brief in support of the CCRC. One of the arguments in that brief is: “Because Of The Separate Legal Personality Of Corporations And Shareholders, The Constitutional Interests Of Shareholders Should Not Be Projected Onto The Corporation.” This discussion group features a dialogue on the pros and cons of this argument, together with related analysis and observations.

I’ll be moderating, and here is a list of dicussants:

Professor Eric Chaffee, University of Toledo College of Law; Professor Sergio Gramitto, Cornell Law School; Professor Joan Heminway, The University of Tennessee College of Law; Professor Arnold Loewy, Texas Tech University School of Law; Professor Brett McDonnell, University of Minnesota Law School; Professor George Mocsary, Southern Illinois University School of Law; Professor James Nelson, University of Houston Law Center; Professor Thomas Rutledge, Stoll, Kennon & Ogden; Professor Ciara Torres-Spelliscy, Stetson University College of Law.

Hope to see you there!

As most readers of this blog are likely aware, the theory behind initial coin offerings and “smart” contracts is that the code itself is entirely transparent and self-executing; the terms of the contract are set in the programming, thus eliminating the need for enforcement mechanisms or for messy legal disputes over interpretation.  The code dictates the agreement, and the code enforces it; investors curious about terms of an investment can simply read the code and have utter certainty as to the nature of the agreement. 

As Matt Levine described it, “If you invest your Ether in a smart contract, you’d better be sure that the contract says (and does) what you think it says (and does).  The contract is the thing itself, and the only thing that counts; explanations and expectations might be helpful but carry no weight.”  Primavera De Felippi and Aaron Wright dubbed this system “lex cryptographica.”

But problems arise when the code diverges from the white paper summary typically distributed to potential purchasers.  Famously, for example, in the case of one project known as the DAO, a “flaw” in the code allowed a “hacker” to steal Ether currency from investors.  Or did it?  Matt Levine explained, “The descriptions didn’t matter; only the code did. The descriptions didn’t allow for today’s hack, but the code did. (By definition! If the code could be hacked, the code allowed for the hack.) Any vulnerabilities in the DAO’s code were not flaws in the code; they were flaws in the descriptions — which were purely for entertainment purposes.”

Which brings us to Coin-Operated Capitalism, a new paper by Shaanan Cohney, David Hoffman, Jeremy Sklaroff & David Wishnick.  They compare the white paper descriptions to the actual code underlying the fifty top grossing ICOs in 2017, and conclude that the two regularly diverge on three critical aspects: whether there are any supply restrictions on the assets, whether there are transfer restrictions on assets distributed to insiders, and whether the code can be modified.  Signifcantly, the authors also found no evidence that these misdescriptions in any way harmed the initial capital raise or affected trading prices thereafter, suggesting that – as the authors conclude – “no one reads smart contracts.”

These results present a challenge to crypto evangelists who hope smart contracts will eventually replace legal institutions, and lend further support for the notion that the demand for ICOs is based on a speculative frenzy rather than any true demand for the products or companies underlying the sales.

Willamette University College of Law seeks applicants for up to two full-time, tenure-track faculty positions beginning in the fall of 2019.  While the focus of our search is for entry-level candidates, we also welcome applications from early-career lateral candidates.  Our curricular interests include Business Associations, Commercial Law, and Health Law, as well as Trust & Estates, Property, Family Law, Tax, Torts, and Criminal Law.  Applicants must possess strong academic credentials and a proven ability to produce thoughtful scholarship, as well as the skills necessary to communicate their expertise to colleagues and their students.  The Faculty Appointments Committee will begin reviewing applications in the late summer and will continue to do so until the positions are filled.

Willamette University is committed to the academic excellence and rich and rewarding communities that a diverse faculty, staff and student body brings.  We welcome candidates whose work furthers equity and diversity and who bring to campus a commitment to sharing varied experiences, perspectives and backgrounds.  Applicants demonstrating these qualifications are particularly encouraged to apply.

Contact:  Please use the AALS submission process to apply; questions can be addressed to Jeff Dobbins, Chair, Faculty Appointments Committee, Willamette University College of Law, 245 Winter Street, Salem, OR 97301, or jdobbins@willamette.edu. 

I am probably late to the game on this, but I just realized that Uber promotes their drivers as “driver-partners.”  It’s even in their ads. This seems unwise.  

Uber has a history linked to the question about whether their drivers are employees or independent contractors. But what about the question of whether Uber drivers are partners or independent contractors? That is big, potential liability conundrum.

Now, just because one says they are partners, that does not make it so, at least as to each other. The converse is also true — saying expressly “this agreement does not form a partnership” does not necessarily mean a court won’t find one. See, e.g., Martin v. Peyton, 158 N.E. 77 (NY 1927) (“Statements that no partnership is intended are not conclusive.”).  But, as to third parties, at a minimum, affirmative statements that one is a partner, can create liability for those involved.  The Uniform Partnership Act (1914) § 16. Partner by Estoppel, provides:

(1) When a person, by words spoken or written or by conduct, represents himself, or consents to another representing him to any one, as a partner in an existing partnership or with one or more persons not actual partners, he is liable to any such person to whom such representation has been made, who has, on the faith of such representation, given credit to the actual or apparent partnership, and if he has made such representation or consented to its being made in a public manner he is liable to such person, whether the representation has or has not been made or communicated to such person so giving credit by or with the knowledge of the apparent partner making the representation or consenting to its being made.

(a) When a partnership liability results, he is liable as though he were an actual member of the partnership.

(b) When no partnership liability results, he is liable jointly with the other persons, if any, so consenting to the contract or representation as to incur liability, otherwise separately.

Similarly, the Revised Uniform Partnership Act provides: 

SECTION 308. LIABILITY OF PURPORTED PARTNER.

(a) If a person, by words or conduct, purports to be a partner, or consents to being represented by another as a partner, in a partnership or with one or more persons not partners, the purported partner is liable to a person to whom the representation is made, if that person, relying on the representation, enters into a transaction with the actual or purported partnership. If the representation, either by the purported partner or by a person with the purported partner’s consent, is made in a public manner, the purported partner is liable to a person who relies upon the purported partnership even if the purported partner is not aware of being held out as a partner to the claimant. If partnership liability results, the purported partner is liable with respect to that liability as if the purported partner were a partner. If no partnership liability results, the purported partner is liable with respect to that liability jointly and severally with any other person consenting to the representation.

Now, can I come up with plenty of counterarguments and ways to make this liability less likely, and those are compelling arguments, too, in many settings. However, I cannot come up with such a good argument that would make it worth using “Driver-Partner” as my term.  How about “Driver-Teammate” or “Driver-Affiliate” or “Driver-Collaborator” or even “Driver-Member?” For me, the specificity of the term “partner,” and the liability that can follow without formal action, would warrant avoiding its use.  But maybe that’s just me.