I recently became a Corporate Law Jotwell contributing editor.  My first jot, TOWARD A NON-BINARY VISION OF DISCLOSURE REGULATION, promotes Lisa Fairfax’s article: Dynamic Disclosure: An Exposé on the Mythical Divide Between Voluntary and Mandatory ESG Disclosure, 101 Tex. L. Rev. 273 (2022).  The crux?

At its core, Lisa Fairfax’s Dynamic Disclosure: An Exposé on the Mythical Divide Between Voluntary and Mandatory ESG Disclosure embraces mandatory disclosure rules in the spirit in which they have been enacted and employed in U.S. federal securities regulation. The article also, however, articulates the independent and cooperative value of voluntary disclosure as an important piece of the regulatory puzzle. . . . Her insightful and diplomatic treatment of the subject matter is a breath of fresh air in ongoing debates about both the regulation of ESG disclosures specifically and mandatory disclosure as a component of securities regulation more generally.

Read the jot.  But more importantly, read Lisa’s excellent article!

The AALS Professional Responsibility Section invites papers for its program “2024 New Voices Workshop.” The goal of this audience interactive workshop is to provide a forum for new voices and new ideas related to professional responsibility (PR), broadly defined.

Many scholars might address PR without realizing it. We are interested in your potential contributions whether you are an evidence scholar writing about the attorney-client privilege, a feminist interested in gender dynamics that affect lawyering, a critical race scholar commenting on how power plays out in legal systems, an ethicist exploring the moral foundations of the rules governing lawyering, or something entirely different.

Toward that end, we encourage you to submit a proposal even if you are pursuing scholarship on PR for the first time, even if you question whether your ideas really do relate to PR, and even if you are reticent to submit for some other reason.

The selected papers will be presented at the AALS Annual Meeting in January of 2024.

WORKSHOP DESCRIPTION:

The Workshop will be an opportunity to nurture the growth of a broad scholarly community in the field of Professional Responsibility and Legal Ethics. As such, it is a place to take risks and develop high quality work—test ideas, work out issues in drafts and dialogue with academics doing interesting and cutting-edge scholarship.

We welcome consideration of works in different formats and stages of production. Depending on the stage of your work, the workshop format will differ.

  • Some authors may have a full draft paper or substantial outline ready for distribution in advance of the conference. In that case, papers will be allocated sufficient time for authors and participants to thoroughly explore each work. The expectation is that all participants will read and prepare comments on fellow participants’ work prior to the conference.
  • For early stage ideas, authors may only have an abstract or one-page treatment for distribution and discussion. In that context, authors and participants will brainstorm around each idea much more briefly than in a typical workshop, making space for a larger number of comments in each session.

Workshop groups will include senior scholars in the field who will aid in the discussion of the pieces and provide feedback. Successful papers and topics, depending on their stage of development, should engage with the scholarly literature and make a meaningful original contribution to the fields of professional responsibility and legal ethics, broadly defined. The format will be determined based on the submissions received and accepted.

ELIGIBILITY: Full-time faculty members of AALS member law schools are eligible to submit papers. Preference will be given to junior scholars. Pursuant to AALS rules, faculty at fee-paid law schools, foreign faculty, adjunct and visiting faculty (without a full-time position at an AALS member law school), graduate students, fellows, and nonlaw school faculty are not eligible to submit. Please note that all faculty members presenting at the program are responsible for paying their own annual meeting registration fee and travel expenses.

 

PAPER SUBMISSION PROCEDURE:

There is no formal requirement as to the form or length of proposals. Abstracts are welcome. Please email submissions to Executive Committee Member, Ben Edwards (benjamin.edwards@unlv.edu) on or before September 15, 2023. The title of the email submission should read: “Submission – AALS PR New Voices Program 2024.”

Back when the Supreme Court decided Goldman Sachs Grp., Inc. v. Ark. Tchr. Ret. Sys., 141 S. Ct. 1951 (2021), I blogged that the confused ruling would eventually be interpreted by lower courts to restore the Fifth Circuit’s decision in Archdiocese of Milwaulkee Supporting Fund v. Halliburton, 597 F.3d 330 (2010), which rejected Basic v. Levinson’s presumption of price impact in fraud on the market cases, and instead replaced it with its own burden on plaintiffs to show price impact.

Thursday’s ruling in the same case – now before the Second Circuit – pretty much bore that out.  Despite the occasional lip service to the defendants’ burden to disprove the existence of price impact, in fact, most of the opinion is concerned with the kind of showing plaintiffs must make to – in the Second Circuit’s words – “do the work of proving front-end price impact.” Op. at 56.  See also op. at 54 n.11 (framing the question presented as “whether there is a basis to infer that the back-end price equals front-end inflation”).

But before we get there, the Second Circuit seems to have sub rosa rejected Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723 (1975), in this throwaway paragraph on page 57:

Consider, for example, an investor who reads certain statements in a company’s Form 10-K, and then thinks “Things seem to be going well; I think I’ll hold onto my shares.” Although the statements did not cause that investor to buy more stock, they informed or influenced her decision. And if the company’s statements are later revealed as false, liability might follow not because the statement caused new or more inflation—that is, caused investors to purchase more stock (thereby increasing demand and, ultimately, raising the share price)—but instead because the statement maintained inflation, or influenced the investor’s decision to hold tight.

Let that serve as a preview for what follows.

[More under the cut]

Continue Reading In Which the Second Circuit Overrules Blue Chip Stamps v. Manor Drug Stores, and also Basic v. Levinson

Full-Time Tenure Track Faculty Positions

New York Law School (NYLS), located in the heart of Tribeca, invites applications for full-time faculty tenure-track or lateral positions. Although we welcome applications from candidates in all fields, we are particularly interested in hearing from those who focus on business law (all areas), intellectual property law, technology and privacy law, and teaching basic first-year courses in torts and contracts. 

NYLS is deeply committed to fostering a diverse and inclusive community. We warmly welcome applications from any and all candidates whose background, lived experiences, and viewpoints will contribute to an exceptional learning environment. To view NYLS’s Strategic Plan, visit www.nyls.edu/strategy, and for information on the School’s commitment to diversity and inclusion, see www.nyls.edu/diversity.

Compensation

The salary range is from $150,000 to $210,000, expressed in annual terms.

How to Apply

Please submit a detailed curriculum vitae listing relevant legal practice and law school experience, a cover letter expressing your interest and describing your qualifications, and a list of references, to William P. LaPiana, Dean of Faculty, at associate.dean@nyls.edu.

New York Law School is an Equal Opportunity Employer

All qualified candidates will receive consideration for employment without regard to of race, color, religion, sex, sexual orientation, gender identity, gender expression, national or ethnic origin, age, disability, or veteran status, or any other characteristic protected by law.

Dear BLPB Readers:

“The Institute for Law & Economics (ILE) at the University of Pennsylvania Carey Law School is pleased to announce its second annual Junior Faculty Business and Financial Law Workshop. The Workshop will be held in person on December 7, 2023 at Penn Carey Law.

The Workshop supports and recognizes the work of untenured legal scholars in the business and financial fields, including accounting, banking, bankruptcy, corporations, economics, finance, tax and securities, while promoting interactions with such scholars, selected tenured faculty and practitioners. By providing a forum for the exchange of creative ideas in these areas, ILE also aims to encourage new and innovative scholarship in the business and financial arena.

Approximately 6-8 papers will be chosen from those submitted for presentation at the Workshop. One or more senior scholars and practitioners will comment on each paper, followed by a general discussion of each paper among all participants. The Workshop audience will include invited untenured scholars, faculty from Penn Carey Law, The Wharton School, and other institutions, practitioners, and invited guests.”

The deadline to submit papers for consideration is September 8th, 2023.  The complete call for papers is here.

Suffolk University Law School’s nationally ranked Clinical Programs, expects to conduct a search for a tenured or tenure-track Clinical Professor to lead our Intellectual Property and Entrepreneurship Clinic (IPEC), to begin in the 2024-25 school year. IPEC is a full-year in-house clinic, one of Suffolk’s 12 in-house clinics, and an important part of Suffolk Law’s outstanding Clinical Programs. Suffolk’s Clinical Programs have been ranked among the top 20 such programs in U.S. News & World Report for more than a decade. Our Clinical Professors have full tenure and are wholly integrated into our faculty, including having equity in terms of faculty rights, perquisites, and responsibilities. IPEC is also integrated into Suffolk’s recently launched Intellectual Property Center and its Intellectual Property Concentration, which includes a number of highly regarded faculty. Suffolk Law’s intellectual property program is regularly ranked among the nation’s best and was most recently ranked number 31 in the country.

We seek candidates with a commitment to excellence in teaching, scholarship, and service. Candidates must have at least five years of relevant experience in one or more areas of intellectual property, including patent, trademark, and/or copyright practice. Applicants must also be admitted or eligible for admission to the Massachusetts bar within a year of the start of the appointment. Prior experience in clinical education or a demonstrated passion for teaching or mentoring is also required. A record of scholarship or a demonstrated interest in producing scholarship, as well as an intellectual engagement with the subject matter is required. Experience working with diverse communities, clients, and other stakeholders is strongly preferred.

The Clinical Professor will have the opportunity to shape the docket of IPEC to meet students’ needs and align with their expertise and interests. The Clinical Professor will similarly shape the content of the accompanying seminar to educate students on relevant substantive law and lawyering skills, including the ethical dimensions of practice, cross-cultural lawyering, critical reflection, and the formation of a professional identity.

Currently, students enrolled in IPEC represent small and emerging businesses from communities unlikely to have access to legal services. Students work on a variety of intellectual property and entrepreneurial matters, including those related to branding, copyright, patent, trademark, trade secret, and privacy protections. IPEC students also currently counsel entrepreneurs and start-up companies on business law matters, such as incorporation, contract law, and IP strategy. Past clients of IPEC have included artists, authors, designers, filmmakers, musicians, innovators, individual entrepreneurs, small businesses, some established corporations, and nonprofit organizations. IPEC has participated in the USPTO’s Law School Clinic Certification Program. You can read more about IPEC here.

Applicants should submit a cover letter, curriculum vitae, research agenda, description of current scholarship (if any), and teaching evaluations (if any). Applicants are also encouraged to submit a diversity statement that describes previous activities mentoring members of underrepresented groups, how issues relating to diversity and inclusion have been or will be addressed in their teaching and practice, and how their scholarship or service would contribute to building and supporting inclusive communities. Cover letters should be addressed to Professor Ragini Shah, Chair of the Clinical Committee.  We will be reviewing candidates on a rolling basis and encourage early inquiries and applications. 

Suffolk University does not discriminate against any person on the basis of race, color, national origin, ancestry, religious creed, sex, gender identity, sexual orientation, marital status, disability, age, genetic information, or status as a veteran in admission to, access to, treatment in, or employment in its programs, activities, or employment. As an affirmative action, equal opportunity employer, the University is dedicated to the goal of building a diverse and inclusive faculty and staff that reflect the broad range of human experience who contribute to the robust exchange of ideas on campus, and who are committed to teaching and working in a diverse environment. We strongly encourage applications from groups historically marginalized or underrepresented because of race/color, gender, religious creed, disability, national origin, veteran status or LGBTQ status. Suffolk University is especially interested in candidates who, through their training, service and experience, will contribute to the diversity and excellence of the University community.

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 and limited liability companies (LLCs). It is an egregious, nearly unforgivable, error in our view to call an LLC a “limited liability corporation.” In part, this is because lawyers should try to get things right, but it is also because conflating the two entity types can lead to unpredictable outcomes. Perhaps more important, it could lead to incorrect and unjust outcomes. A prime example lies within the veil piercing context.

Lest you think that this is not a prevalent occurrence, there are nearly 9,000 references to the phrase “limited liability corporation” in court cases. Practicing attorneys are not the only people messing this up. Judges, legislators, federal and state agency officials, and media pundits are also getting it wrong. Most recently, Justice Samuel Alito scribed an op-ed that was published in the Wall Street Journal where he misused the term. Even the TV show Jeopardy! allowed as correct the answer, “What is a limited liability corporation?,” during one episode.

Enter artificial intelligence. AI relies on information it can find, and therefore AI generators, like ChatGPT, replicate the incorrect term. With a proliferation of users and programs using ChatGPT and other AI, the use of incorrect terminology will balloon and exacerbate the problem. Perhaps one day, AI can be used to correct this problem, but that cannot happen until there is widespread understanding of the distinct nature of LLCs and a commitment to precise language when talking about them.

This article informs of the looming harms of misidentifying and conflating LLCs with corporations. Additionally, it presents a warning together with ideas on how to assist with correcting the use of incorrect terminology in all contexts surrounding LLCs.

I am excited to highlight the recent posting by Matteo Gatti of his draft paper entitled Corporate Governing: Promises and Risks of Corporations as Socio-Economic Reformers.  I got a preview of this work at the National Business Law Scholars Conference back in June.  The title of the paper is both descriptive and clever, as the abstract below reveals.

Corporations are involved in public affairs: racial equity, women’s rights, LGBTQIA rights, climate efforts are just a few examples of an increasingly long list of areas in which corporations are active and vocal. One phenomenon is well-known: corporations promote, contrast, or finetune governmental initiatives through political messaging. In addition, corporations perform quasi-governmental functions when the actual government cannot (because of its dysfunction) or does not want to (because of its political credo) perform such functions. Economists, legal scholars, and policymakers are split as to whether corporations should take this role.

This Paper contributes to the literature in several ways. First, it maps various areas of reform by corporations in the socio-economic sphere. Then, it provides legal and policy frameworks for corporate governing by analyzing the underlying conducts under our current laws and by evaluating its multifaceted normative merits: Is there a business case for corporate governing? Is corporate governing strategically wise for corporations? Does it help social advocacy and society at large? Does corporate governing undermine actual government and imperil democratic institutions? Further, this Paper assesses corporate governing by looking into its promises and risks from a corporate and from a societal perspective and singles out two risks. First, corporate governing cannot help society in fields in which corporations have a conflicting interest, like on themes such as antitrust, tax, labor, privacy, financial and corporate reform. Second, with corporations having a greater role in policymaking, citizens may become less accustomed to expecting reform via traditional politics: addressing this risk requires efforts from citizens, civil society, and politicians to preserve democratic values and institutions—corporate governance can help but cannot be the driving force.

The article offers helpful, coherent observations about and analyses of the roles business firms play–and should play–in political governance, as well as the possible effects of those political governance engagements.  I look forward to spending more time with this work!

Illinois Academic Fellowship Program

University of Illinois College of Law

The College of Law at the University of Illinois, Urbana-Champaign has an opening for the Illinois Academic Fellowship Program to begin in the 2024-2025 academic year. Fellows are appointed as a visiting assistant professor of law. The full announcement can be found at https://jobs.illinois.edu/.

Fellows spend one or two years in residence at the College of Law researching and writing under the close mentorship of Illinois faculty, teaching one course per semester, and fully participating in the College’s rich intellectual environment. By the end of the program, we expect fellows to be competitive for tenure-track positions at leading law schools.

Applications for the Illinois Academic Fellowship Program are invited from law school graduates as well as Ph.D. recipients or candidates in any field who have a sustained academic interest in law’s interaction with their discipline. Fellows will be chosen on their potential, with appropriate support and mentoring, to obtain a tenure-track position at a U.S. law school.

Fellows will receive faculty assistance with their research projects; the opportunity to present works in progress to the faculty in a workshop setting; the opportunity to attend and participate in lectures, colloquia, symposia, roundtables, and faculty workshops; faculty advice and assistance in preparing for the academic job market; and, where appropriate, pairing with a faculty mentor. Assisting fellows in preparing a substantial piece of scholarship, with an emphasis on the “job talk” paper, is a primary goal of the Illinois Academic Fellowship Program. More information is available at http://www.law.illinois.edu/faculty/illinois-academic-fellowship-program.

Applicants are strongly encouraged to submit their materials by January 1, 2024. We expect interviews to take place starting in January 2024. No applications will be accepted after January 31, 2024. For assistance with the application process, please email lehigh@illinois.edu.

Tenured/Tenure Track Professor of Law

University of Illinois College of Law

THE UNIVERSITY OF ILLINOIS COLLEGE OF LAW invites applications for positions on the tenured/tenure-track faculty to begin in August 2024. The College welcomes applications from scholars in all subject areas of the law but has particular interests in hiring in the following areas:  constitutional law; intellectual property law; ethical, legal and social implications of digital transformation; and tax law.

The University of Illinois offers a distinguished and collegial law school community in the setting of a premier research university, affording opportunities for cutting-edge legal scholarship and innovative interdisciplinary work. Champaign-Urbana is a vibrant college town with an exceptional quality of life. 

These positions are full-time, nine-month, tenured or tenure-track positions. The University of Illinois offers an outstanding and comprehensive benefit package. Salary is commensurate with experience. Applicants must have a J.D. or Ph.D. or their equivalent, a strong academic record, and a record of scholarly distinction or great scholarly promise. 

For full consideration, please use the AALS FAR website https://www.aals.org/services/recruitment/far/ or create a candidate profile at https://jobs.illinois.edu  and upload the following required documents: Curriculum Vitae, sample publications, and contact information of four references (name, telephone number and email address).  Applications will be considered on a rolling basis with a firm deadline of October 22, 2023. For assistance with the application process, contact Tish Lehigh at lehigh@illinois.edu.

The University of Illinois is an Equal Opportunity, Affirmative Action employer that recruits and hires qualified candidates without regard to race, color, religion, sex, sexual orientation, gender identity, age, national origin, disability or veteran status. For more information, visit http://go.illinois.edu/EEO.