Georgia State University College of Law located in Atlanta, Georgia is recruiting for a new faculty member to join the Phillip C. Cook Low Income Taxpayer Clinic.    As leadership in the clinic are looking to transition the new hire will likely serve as the Director of the clinic given the experience level of the candidate.  The clinic is funded by the IRS, private donors and the university so it is a secure job line.  We are posting this announcement out of cycle and the position will remain open until filled which means that recruitment may likely extend through next fall. The Committee is interested in lateral applicants, those pursuing training in clinical education and individuals with significant tax practice experience who may be new to clinical teaching.  The job posting is available here. 

-Anne Tucker

The internet age has brought tremendous access to information.  As kids, many of us were used to the familiar refrain from our parents, “Go look it up.”  That meant getting out a dictionary or the Encyclopedia Britannica (volumes of books) to see if we could figure out unique facts about the Tasmanian Devil (my fourth-grade report subject), which is “the world’s largest carnivorous marsupial.”   Things have changed.

Today, telling someone to look it up means a trip to the computer, and probably Google, Bing, Yahoo or some other search engine.  Maybe it could mean a news service like the New York Times, and of course Westlaw, LexisNexis, or Bloomberg for legal issues. If I needed any evidence things have changed for all of us, I recently asked my nine-year-old son to put the “word book” he got out to help with his homework. He looked at me and asked, “You mean the dictionary?”  Um, yeah.  

Anyway, with all this information at our fingertips, I am regularly amazed how often I could tell people to, “Look it up.”  Students regularly ask me questions that they could easily look up themselves, and it happens with colleagues or vendors, too. I have always liked finding the answers to questions, so it usually doesn’t bother me much. I like to be the source of information.  But when it’s really easy to find — as in “What’s the population of  West Virginia?” — it’s a little disappointing. 

In a time where people are often looking for an edge to make themselves more valuable to their employer, I suggest that people should be more inclined to look things up.  Try to save questions for times when you really need the help.   

It may just be my students, but it seems there is a renewed interest in business law careers among law students.  Several of my students this year who had originally started down a path toward a career in another area of law have happily and passionately settled, somewhat late in the game, on being business lawyers.  Somehow, after taking Business Associations and other foundational business law courses, they’ve been bit by the business law bug.  And they are incredibly talented students–high up in their class in terms of rank and well worthy of employment in a firm or business or government.  One is my research assistant.

We have been working together and with the folks in our Career Center to identify relevant geographical and employer markets.  But I am seemingly engaged in a continuous struggle to help each of them (a) to enhance his resume to reflect his new-found business law passion (given that each already had accepted a second summer job somewhat or totally outside the business law area when he refocused on business law as a career path) and (b) to make the new connections that he needs to make in order to successfully pursue his revised career path.  How can a middle-aged academic almost 15 years out of practice help a 3L business law job-seeker to make his resume more relevant, his contact list deeper, and his interviews more effective?

Continue Reading So . . . You Think You Want a Business Law Job . . . .

Happy Presidents’ Day.

Sometimes, this holiday gets overlooked. In fact, it’s not even treated as a holiday by my university. Originally the Washington’s Birthday holiday, it was renamed and broadened to include other Presidents, primarily Lincoln, who also has a February birthday. This isn’t business law, but I think it’s important to remember the greatness of those two men. Compared to many of today’s politicians, their intelligence and integrity is astounding. Their voices remain relevant today.

Here, for your enjoyment, quotes from Washington and Lincoln:

George Washington:

If benefits have resulted to our country from these services, let it always be remembered to your praise, and as an instructive example in our annals, that under circumstances in which the passions, agitated in every direction, were liable to mislead, amidst appearances sometimes dubious, vicissitudes of fortune often discouraging, in situations in which not unfrequently want of success has countenanced the spirit of criticism, the constancy of your support was the essential prop of the efforts, and a guarantee of the plans by which they were effected. Profoundly penetrated with this idea, I shall carry it with me to my grave, as a strong incitement to unceasing vows that heaven may continue to you the choicest tokens of its beneficence; that your union and brotherly affection may be perpetual; that the free Constitution, which is the work of your hands, may be sacredly maintained; that its administration in every department may be stamped with wisdom and virtue; that, in fine, the happiness of the people of these States, under the auspices of liberty, may be made complete by so careful a preservation and so prudent a use of this blessing as will acquire to them the glory of recommending it to the applause, the affection, and adoption of every nation which is yet a stranger to it.

This is from Washington’s Farewell Address. The full text is available here.

Abraham Lincoln

The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.

This is from the Gettysburg Address. The full text (in its many versions) is available here.

The news this week in shareholder rights is that GE joined the list of companies that have voluntarily enacted their own bylaws permitting large shareholders to nominate directors to be included on the company proxy.  

GE’s action comes in the midst of a publicly-announced campaign by the New York City Comptroller to gather support for shareholder-enacted bylaws that would do roughly the same thing.  (And a very ugly battle over such bylaws at Whole Foods, as Marcia previously posted.)

In that context, GE’s move seems like something of a Trojan horse.  By enacting its own bylaw, GE preempts any attempts by shareholders to do so.  Meanwhile, because the bylaw is director-enacted, GE can yank it at any time – like, if it feels there’s a coherent movement that threatens the current board’s dominance.  In fact, this strategy was recently on display when Rupert Murdoch announced an unsolicited takeover of Time Warner.  The first thing Time Warner’s board did was to repeal a director-enacted bylaw that permitted shareholders to call special meetings.

As a result, I’m not quite yet ready to call this a great win for shareholder democracy.

As one of Belmont University’s pre-law advisors, I have been getting an increasing number of e-mails from law school representatives across the country who are trying to recruit our students. One thing that I have been pushing for is better employment data. For the most part, the law school representatives simply send me the ABA required data, which I can already find on my own. 

The ABA required data is somewhat helpful to me as an advisor, but the data is insufficient. We really need better salary data and complete (or near complete) employer/job title lists. Longitudinal studies, though difficult to do well, might be interesting.  

The ABA required data tells us how many of a law school’s graduates for a given year are employed in law firm jobs, judicial clerkships, government, public interest work, etc. The ABA data does not distinguish between an associate attorney position (~$160,000 + prestige + career mobility) and a staff attorney position (~$50,000 + no prestige + dead end, in most cases) at the same large firm – assuming both are full-time, long-term positions, which they can be. While I readily admit that salary is often not the most important part of a job, when prospective law students are considering taking out $100,000+ in loans, they do need to think about how they are going to pay it all back. 

On the job title side, a management track job in a bank is a good bit different than working as a teller at that same bank. On the employer side, some small law firms are prestigious boutiques and others are akin to hanging your own shingle; if you had the employer names, you could look them up and uncover the type of work they do and their reputation.  

I applaud The University of Michigan Law School for their employer list. According to the list, none of their graduates, over three years, opted out of the list. Only 7 out of over 1000 employment outcomes were unknown. Other schools have provided me with employer lists, but those lists are usually very incomplete, cherry-picked lists. I am not sure how Michigan pulled together this complete of a data set, but other law schools should ask and attempt to replicate.

Add more complete salary data–could we get 75+% reporting?–to an employer list like Michigan’s and prospective students would have a much better look at their likely employment outcomes. (Michigan actually does have over 75% reporting salaries, but many schools are well under 50% reporting). Law School Transparency has been pushing for and organizing some of this data, but we can all join in the attempt to obtain even better employment data so that prospective law students can make more informed decisions. 

My seventy business associations students work in law firms on group projects. Law students, unlike business students, don’t particularly like group work at first, even though it requires them to use the skills they will need most as lawyers—the abilities to negotiate, influence, listen, and compromise. Today, as they were doing their group work on buy-sell agreements for an LLC, I started drafting today’s blog post in which I intended to comment on co-blogger Joan Heminway’s post earlier this week about our presentation at Emory on teaching transactional law.

While I was drafting the post, I saw, ironically, an article featuring Professor Michelle Harner, the author of the very exercise that my students were working on. The article discussed various law school programs that were attempting to instill business skills in today’s law students. Most of the schools were training “practice ready” lawyers for big law firms and corporations. I have a different goal. My students will be like most US law school graduates and will work in firms of ten lawyers or less. If they do transactional work, it will likely be for small businesses.  Accordingly, despite my BigLaw and in-house background, I try to focus a lot of the class discussion and group work on what they will see in their real world.

I realized midway through the time allotted in today’s class that the students were spending so much time parsing through the Delaware LLC statute and arguing about proposed changes to the operating agreement in the exercise that they would never finish in time. I announced to the class that they could leave 10 minutes early because they would need to spend at least another hour over the next day finishing their work. Instead most of the class stayed well past the end of class time arguing about provisions, thinking about negotiation tactics with the various members of the LLC, and figuring out which rules were mandatory and which were default. When I told them that they actually needed to vacate the room so another class could enter, a student said, “we just can’t get enough of business associations.” While this comment was meant to be a joke, I couldn’t help but be gratified by the passion that the students displayed while doing this in-class project.  I have always believed that students learn best by doing something related to the statutes rather than reading the dry words crafted by legislators.  My civil procedure students have told me that they feel “advanced” now that they have drafted complaints, answers, and client memos about Rule 15 amendments.

I am certainly no expert on how to engage law students, but I do recommend reading the article that Joan posted, and indeed the whole journal (15 Transactions: Tenn. J. Bus. L. 547 (2014). Finally, please share any ideas you have on keeping students interested in the classroom and prepared for the clients that await them. 

 

Andrew Ross Sorkin at the DealBook in his column, Do Activist Investors Target Women C.E.O.’s?, asked earlier this week  if the gender of the CEO influences the target of activist shareholders.  

Only 23 women lead companies in the Standard & Poor’s 500-stock index. Yet at least a quarter of them have fallen into the cross hairs of activist investors.

The article references Patricia Sellers observations in Fortune last month regarding corporate raider Nelson Peltz and his targeted attacks on PepsiCo lead by Indra Nooyi and Mondelez International lead by CEO Irene Rosenfeld as well as his current demands on DuPont, with Ellen Kullman as chairman and CEO.

In the absence of correlating data about female CEO’s and weaker company performance, the question lingers is there something besides performance that prompts the targeting of these companies?  To explain the question the article references several studies that report perception differences in competence, risk and performance based solely on gender, with, women on the losing end of these perception biases.

As I think is a common tendency, I gravitate towards information that relates to what I am personally thinking about, experiencing or interested in at the moment.  Earlier on this blog, I wrote about gender issues in the classroom.  On my current reading list, is the book What Works for Women at Work written by Joan Williams and Rachel Dempsey, that (1) reviews the existing literature about pervasive gender bias, (2) articulates how unconscious bias influences outcomes (acknowledging that for the most part society has moved past explicit and overt gender discrimination), (3) identifies four patterns where these biases consistently emerge based in part on her interviews with 127 “successful” women, and (4) discusses how the workplace (meaning men and women) can move beyond the limitations of these implicit biases.  Several colleagues and friends are reading this book along with me as well.  And the best part:  not everyone reading the book is (and not everyone should be) a women.  

-Anne Tucker

Business law is filled with a wide range of regulation and regulatory issues, and one of the main areas of business law for my research is energy law.  Regulation impacts energy businesses at many levels. Energy companies have to deal land use regulations, air and water quality regulations, work place regulations, and (often) securities regulations.  

On the land use and permitting side of things, oil and gas law has long been considered primarily a state issue, making such regulations relatively local (i.e., not federal).  In recent years, with the increased use of high-volume hydraulic fracturing, many local governments have decided to restrict the process in their localities, splitting from state regulatory regimes that would allow the process. Interesting cases related to fracking bans from New York, Colorado, and Pennsylvania provide good examples of this process. 

Texas Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015), discusses the debate about whether local governments should be ale to overrule the state law on oil and gas operations.  Here’s the abstract:

As the controversy over fracking continues to sweep the nation, many local communities have enacted ordinances banning the practice, creating conflicts between these ordinances and statewide regulation schemes. This has given rise to state–local preemption challenges within state courts. In this Article, Professor Spence analyzes these conflicts, focusing on the best way to distribute the costs and benefits of fracking and how courts have attempted to address these distributional concerns. He begins by describing the conflicts between state law and local ordinances and the court decisions that have resolved these preemption issues. He next discusses how future takings claims would affect the distribution of the costs and benefits of fracking.

I think Prof. Spence is right on a lot of the issues, though I have come to believe that, at least for most oil and gas issues, as long as state-level regulation is the primary regulation in the sector, whether localities have the ability to ban hydraulic fracturing in their jurisdictions is irrelevant.  That is, I see oil and gas as a state-level issue, and if state’s have or wish to grant counties or municipalities local control, then great.  If the state chooses to maintain control, that’s fine, too.  

My main concern is that legislators and regulators, and courts who review their decisions, seek sufficient information to balance the costs and benefits of oil and gas operations.  This is not an outcome driven analysis. That is, decision makers can, in my view, properly assess the costs and benefits of the hydraulic fracturing process and have different outcomes (such as one court upholding a ban and another striking a ban).  But one must gather information and assess the broader range of issues raised by oil and gas operations, which are not that different from many other industrial operations, as I have argued previously, here.

I’ll close with a shameless plug for my response to Prof. Spence’s article, which appears in Texas Law Review See Also, along with responses from two outstanding scholars: Alexandra Klass  (Fracking and the Public Trust Doctrine: A Response to Spence) and Hannah Wiseman  (Governing Fracking from the Ground Up).  I highly recommend these three pieces, and if you want more, you can check out mine.  

Here’s my abstract for How Local is Local?: A Response to Professor David B. Spence’s the Political Economy of Local Vetoes:

Abstract:      

Professor Fershee responds to Professor David B. Spence’s article about local hydraulic fracturing bans: The Political Economy of Local Vetoes, 93 Texas L. Rev. 351 (2015). Professor Spence notes that the shale oil and gas debate provides an example of “an age-old political problem that the law is called upon to solve: the conflict between an intensely held minority viewpoint and a less intense, contrary view held by the majority.” In resolving such conflicts, Spence suggests that courts should resolve such “conflicts in ways that encourage states and local governments to regulate in ways that weigh both the costs and the benefits of shale oil and gas production fairly and fully.” 

This Response suggests the Professor Spence’s test for local control is a sound, but adds another factor contributing to local control. As noted above, another way of considering local control over oil and gas operations is to view local control as state-level control. This Response proceeds under the premise that each state should decide whether it wishes to allow its municipalities to exercise oil and gas related vetoes. In analyzing whether local vetoes are efficient under Professor Spence’s test, this article analyzes recent decisions in New York, Pennsylvania, and Colorado. 

This Response concludes that as long as state-level regulation is the primary basis for oil and gas regulation, Professor Spence’s overarching rule that state and local governments pursue regulations seeking to balance the costs and the benefits of shale oil and gas production “fairly and fully” is a foundation for good regulation. In this sense, local (meaning state or smaller subdivisions) vetoes are critical, but how “local” the vetoes are is less important. The key, then, is ensuring that courts and regulators are actually balancing costs and benefits.