Redyip has returned, and by virtue of my new role as Associate Dean for Faculty Development, I'm more interested than usual in the annual springtime flood of submissions to the newly minted law review editorial boards (although I do have an article out this cycle. And it's totally awesome).
The problem is one of volume: ExpressO and Scholastica have lowered the cost of submission to each additional journal to mere dollars, giving an author the incentive to submit to dozens and dozens of journals. The fall cycle is diminished, and so more and more submissions funnel into the weeks of February and March. For years this system limped along mostly on expedites, where authors submitted to large numbers of journals. Once an author received an offer from a journal, she would expedite up, and law reviews in the tier above the offering school would use those expedites as a screening mechanism. But anecdotal reports suggest that the sheer volume of articles may be overwhelming students, and expedited articles are going unread.
The typical law prof response is to tut-tut, and murmur approvingly about peer reviewed journals. But a peer review journal means exclusive submissions, the torture of revise and resubmit, and a whole lot of work from the peers (i.e., us). I think most professors, when alone with their thoughts in the dark of night, would admit that they like the ability to submit simultaneously, and the closure of knowing where their piece will land come April. So what to do?
ExpressO's now offers two limited forms of relief to student editors: First, it allows law reviews to set a maximum number of simultaneous requests for expedite. Second, it allows law reviews to select "peers" from which to receive expedites.
Here's a bolder solution: what if authors could credibly commit that they were only offering to 10-20 journals at a time? This would reduce submissions significantly, and also allow journals more comfort in knowing that the authors really are interested and that their offers, while being shopped, aren't being shopped to every single school ranked higher than they are.
The problem is that it would be hard for authors to credibly commit, since any individual is best served by cheating. But what if the system's intermediaries--ExpressO and Scholastica--offered this feature? That is, allowed authors to signal that they'd only submitted to a limited number of reviews at any one time, and then flagged those pieces as "exclusive" (or at least, semi-exclusive) for law review editors? If the reviews collectively stated a preference--even a mild one--for such submissions, maybe we'd all be better off.
Fellow - Berkeley Center for Law, Business and the Economy (BCLBE)
- Boalt School of Law - JD Program
Salary Range: Commensurate with experience
Start Date: August 2015 or earlier by agreement
This is a 100% time, one-year term contract position, with the possibility of renewal for a second year.
The Berkeley Center for Law, Business and the Economy is seeking to hire a Research Fellow.
The Berkeley Center for Law, Business and the Economy (BCLBE) is Berkeley Law’s hub for rigorous, relevant, empirically based research and education on the interrelationships of law, business, and the economy. BCLBE informs students, policymakers and the public of the implications of this innovative work to promote positive outcomes on business operations, economic growth, and market efficiency. BCLBE’s interdisciplinary approach to basic research, timely policy research, curriculum innovation, and public education empowers current and future leaders in business, law and policy to tackle the most pressing problems of today and tomorrow.
The Fellow’s primary responsibilities will include:
• Working with the BCLBE faculty and staff to arrange and implement programming, including student events, conferences workshops and alumni and practitioner events.
• Working with the BCLBE faculty and staff, to develop research topics in law, business and the economy;
• Researching and writing white papers of publishable quality for policy-focused audiences, under the direction of faculty and staff;
• Speaking at workshops, to the academic community and the press about research initiatives;
• Assisting with other necessary aspects of the operation of BCLBE; and
• Assisting faculty in research questions involving data collection.
In addition, the Fellow will be provided with a significant opportunity to develop a research and writing agenda, including authorship of their own research work.
• J.D. degree or equivalent is required at the time of application
• Relevant experience in corporate finance, programming, and/or quantitative research is preferred;
• Excellent research, analytical and writing skills;
• Excellent communication and interpersonal skills;
• Organizational skills;
• Self-starter able to prioritize and function both independently and collaboratively;
• The ideal candidate will have a high degree of organization skills, experience and knowledge of business law and the ability to work capably with faculty and staff. The candidate should also have an interest in research and academia.
UC Berkeley offers an excellent benefits package as well as a number of policies and programs in place to support employees as they balance work and family. Information about health and retirement benefits can be viewed online at http://atyourservice.ucop.edu/.
Early applications are encouraged. The final deadline for applications is April 30, 2015.
Letters of reference and copies of scholarly transcripts may be requested of top candidates. All letters will be treated as confidential per University of California policy and California state law. Please refer potential referees, including when letters are provided via a dossier service or career center, to the UC Berkeley statement of confidentiality (http://apo.berkeley.edu/evalltr.html) prior to submitting their letters.
Berkeley Law is interested in candidates who will contribute to diversity and equal opportunity in higher education through research. Qualified women and members of underrepresented groups are strongly encouraged to apply.
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.
I've seen hard lobbying before, but this literal love letter from the Chamber of Commerce to the Trans-Pacific Partnership is pretty next level. The big finish:
I love your trade promotion authority as if she were my own family. I’m ready to adopt her today if that would fast-track me to your heart. I can’t wait to call you my own and make sweet sweet economic progress with you.
Please be mine. I will be yours.
The American Business Community
Just before DVDs come out, here are two reviews of holiday movies the kids and I finally caught at the "dollar movie" ($4). We were excited about both of these back in December, but then the reviews came out and we dragged our feet. In the end, we weren't (too) disappointed.
Into the Woods. If you were wondering what Anna Kendrick was doing with Neil Patrick Harris last night during the Oscars opening number, this is it. Kendrick seemed to be wearing her exact dress (but not shoes -- remember the cow ate one) from her role as Cinderella in this musical movie. Unlike my kids, I had not seen even a high school production of Into the Woods, so I was struck for the first time at how clever the plot is. Many (many) fairy tales are woven into one story of an old, ugly witch who gives the barren baker couple next door a chance to have a child if they will go "into the woods" and fetch her four objects by midnight in three days -- a red cape, a milk white cow, a gold slipper and hair the color of corn. The woods here are a metaphor for [life/the world/fears/hopes/whatever]. People are changed when they go into the woods and emerge wiser and less innocent. The Broadway version (not the high school musical version) is grittier, so some of the songs don't seem quite right with the Disney-fied version, but that's ok.
So, is the singing good? Yes, by most measures. Meryl Streep is much better than she was in Mamma Mia, I suppose because the genre is a better fit? Or the range? The autotune? Anna Kendrick is also great, as is Jack (of beanstalk fame), played by Daniel Huttlestone, sounding (and looking) exactly as he did as Gavroche in Les Miserable. I found this actually distracting, but that may just be me. The funniest song is "Agony," sung tongue-in-cheek by Prince Charming (Chris Pine) and his brother, Rapunzel's hero (Billy Magnussen). It goes on a bit long, but so does everything in the movie. At one point, my son got up to go to the restroom, and I warned him that the movie was almost over. He gave me a knowing look and said, "No it's not, Mom." And it wasn't. So, if you think the play goes on a bit long, so does the movie. All in all, I'm glad we went and thoroughly enjoyed it.
Annie. We were shocked that this movie did not get good ratings, particularly because the trailer seemed so promising. Now, we aren't as shocked. I think the reviews for this movie are low for two reasons: substance and score (I guess that's everything, though).
When the movie came out, I noticed a lot of chatter on FB about how parents with adopted children should stay clear of the movie. And here's the problem. Little Orphan Annie was a depression-era cartoon, and the play and Carol Burnett movie version keep the action in our romantic past. The long-distance lens lets us pretend that orphans in orphanages are blissfully ignorant of their basket-on-doorstep pasts, perfectly well-adjusted and healthy, one day away from a happily ever after with a new family, and temporarily cared for by a matron who is too campy and funny to be too evil. But Annie tries to revamp the musical by putting the events in modern day, where we know a little too much about the foster care system, attachment disorders, and reunification to find the fairy tale in five foster care children daydreaming about their real families. The foster mom, played to the hilt by Cameron Diaz, is more sharp than funny as a bitter alcoholic. Of course, if the movie were too realistic it wouldn't be the same musical, so our five foster care children feel sorry for their foster mom and laugh her off. The right balance may have been impossible, but it's definitely not there.
So, our 2014 Annie is still waiting for her parents, who left her (somewhere) when she was 4, leaving a note saying they would come back and get her and a locket. She seems to have no memories prior to being left, and no hard feelings. But early on, she (literally) runs into Mr. Stacks (Not Warbucks, but close), who is the richest man in America and is running for mayor of New York. He is elitist and out-of-touch, and befriending a "foster kid" improves his polling. Annie is worldy-wise and agrees to play along, all the while continuing her search for her real parents. Of course, the two opposites grow fond of each other, but the evil scheme of Stacks' political consultant and the foster mom to "find" the real parents intervenes.
Here, again, reality intervenes. In a realistic movie, the thought of paying a couple to pretend to be the real parents of a little girl, take her somewhere and "dump her back in the system" seems like the worst atrocity, not a temporary plot tension. This twist does not play well in a light-hearted musical.
Which brings us back to the musical. The credits list as producers not only Will Smith & Jada Pinkett Smith, but also Jay-Z. These extremely talented people know a lot about music. But funnily enough, the "new" songs are completely unmemorable. They are not toe-tapping, and in fact they can't even get the actors in the movie into any sort of dancing most of the time. The musical restraint here is very boring. In Enchanted, show-stopping song and dance numbers were woven into the script, even though they seemed out of place and out of time. The script used that juxtaposition, and it worked. Here, the subtle songs just don't work.
there are also some plot holes -- Where is Stacks' mother and the rest of the family? He acts like an orphan, but his family is just in Queens. Where is Annie's parents? If Annie becomes an overnight social media sensation, why don't they come forward? Especially when the fake reunion is plastered everywhere? In the 1920s, it is realistic to think that families would become separated and unable to find each other. Now? Not so much.
I hope everyone is having a great Oscar Sunday! Scholastica and ExpressO tell me that I have successfully submitted my latest paper, but I think they mean that I have successfully uploaded my latest paper. Anyway, months before it is published (if at all), you can get <i>The Limited Liability Partnership in Bankruptcy</i> here. Here is the abstract:
Brobeck. Dewey. Howrey. Heller. Thelen. Coudert Brothers. These brand-name law firms had many things in common at one time, but today have one: bankruptcy. Individually, these firms expanded through hiring and mergers, took on expensive lease commitments, borrowed large sums of money, and then could not meet financial obligations once markets took a downturn and practice groups scattered to other firms. The firms also had an organizational structure in common: the limited liability partnership.
In business organizations classes, professors teach that if an LLP becomes insolvent, and has no assets to pay its obligations, the creditors of the LLP will not be able to enforce those obligations against the individual partners. In other words, partners in LLPs will not have to write a check from personal funds to make up a shortfall. Creditors doing business with an LLP, just as with a corporation, take this risk and have no expectation of satisfaction of claims by individual partners, absent an express guaranty. In bankruptcy terms, creditors look solely to the capital of the entity to satisfy claims. While bankruptcy proceedings involving general partnerships may have been uncommon, at least in theory, bankruptcy proceedings involving limited liability partnerships have recently become front-page news. The disintegration of large, complex LLPs, such as law firms, does not fit within the Restatement examples of small general partnerships that dissolve fairly swiftly and easily for at least two reasons. First, firm creditors, who have no recourse to individual partners’ wealth, wish to be satisfied in a bankruptcy proceeding. In this circumstance, federal bankruptcy law, not partnership law, will determine whether LLP partners will have to write a check from personal funds to satisfy obligations. Second, these mega-partnerships have numerous clients who require ongoing representation that can only be competently handled by the full attention of a solvent law firm. In these cases, the dissolved law firm has neither the staff nor the financial resources to handle sophisticated, long-term client needs such as complex litigation, acquisitions, or financings. These prolonged, and lucrative, client matters cannot be simply “wound up” in the time frame that partnership law anticipates. The ongoing client relationship begins to look less like an obligation to be fulfilled and more like a valuable asset of the firm.
Partnership law would scrutinize the taking of firm business by former partners under duty of loyalty doctrines against usurping business opportunities and competing with one’s own partnership, both duties that terminate upon the dissolution of the general partnership or the dissociation of the partner. However, bankruptcy law is not as forgiving as the LLP statutes, and bankruptcy trustees view the situation very differently under the “unfinished business” doctrine. The bankruptcy trustee, representing the assets of the entity and attempting to salvage value for creditors, instead seeks to make sure that assets, including current client matters, remain in partnership solution unless exchanged for adequate consideration, even if the partners agree to let client matters stay with the exiting partners. This Article argues that the high-profile bankruptcies of Heller Ehrman LLP, Howrey LLP, Dewey & LeBeouf, LLP, and others show in stark relief the conflict between general partnership law and bankruptcy law. The emergence of the hybrid LLP creates an entity with general partnership characteristics, such as the right to co-manage and the imposition of fiduciary duties, but with limited liability for owner-partners. These characteristics co-exist peacefully until they do not, which seems to be at the point of dissolution. Then, the availability of limited liability changes partners’ incentives upon dissolution. Though bankruptcy law attempts to resolve this, it conflicts with partnership law to create more uncertainty.
Scourge of law schools David Segal has a great article on Peter Lik, the best selling photographer in the world. Lik is pretty impressed with his life, and has become very, very rich, so perhaps he should be. However, the photos he sells aren't exactly full of resale value. Instead, they're way more likely to cost more only if you buy them from Peter Lik, who makes a limited number of copies, and increases the price after he sells each one.
Currently, there are more than 770 Liks for sale on ArtBrokerage.com, the most of any artist on the site. As of Friday, that included 27 copies of one image, “Tree of Hope,” with prices that ranged from $5,000 to $29,000.
Or you can buy a copy at the gallery, where it has achieved Second Level Peter Lik Premium status, for $35,000.
Is this okay? It's not like you should be able to sue any artist who sells you art that doesn't gain in value; as a first approximation, 100% of all artists make art that doesn't gain in value. And it's not like Lik's in house gallerists have a special duty of care towards potential purchasers. And common law fraud is a last resort kind of claim, it seems to me. But boy, the way the those photos are sold...the article is full of dodgy representations by seemingly well-coached, and honest sounding salespeople. This might be the kind of profile that establishes that yes, there is such a thing as bad publicity.
The WSJ has launched the Billion Dollar Startup Club, which tracks venture-backed private firms valued at over $1 billion. I am getting crotchety in my old age, and view the fact that 73 companies fall into this category as a sign of extreme and unsustainable froth. After all, only 35 firms topped $1 billion in the dot-com bubble (adjusted for inflation).
For me these billion-dollar startups are a product of the JOBS Act's schizophrenia. On the on hand, Title I created the emerging growth companies that made it easier to go public. Because that's what we want, right? More public companies? But simultaneously Titles II, IV, and V made it easier for companies to stay private. Because that's what we want, right? For private firms to be able to raise money more easily and stay private longer? Hence the schizophrenia: the JOBS Act isn't sure what it wants, but it wants companies to be able to do it easier, whatever it is.
Now I sound like a hater, and I'm not. I just find it interesting that, for all of the talk of the need to make U.S. capital markets more amenable to new public companies, more and more VC-backed firms are staying private even with sky-high valuations.
Also, get off my lawn.
Here's an interesting profile of the guy who is going after banks that held money eventually used in terrorist activities by clients - a potentially long list of defendants, if he can make the legal theory stick. He came up with that theory, by the way, by noodling it out with one of his law school professors. HT: Matt Levine
Fiduciary law scholars in the U.S. do not pay enough attention to fiduciary law scholars in other countries. Of course, most of us who write in this area are talking about particular cases decided in the U.S. or areas of law with U.S.-specific attributes. But if you want to learn more about fiduciary law generally, it's worth reading the work of the professors teaching in Commonwealth countries. For example, I highlighted the work of Paul Miller in a JOTWELL post last year. Over the next little while, I will highlight some other work that may be interesting to American academics, and this post is about Lionel Smith's (McGill) excellent article on "Deterrence, Prophylaxis and Punishment in Fiduciary Obligations" in the fine Australian journal (edited by Simone Degeling of UNSW) The Journal of Equity, which you can find on Lexis (but not on Westlaw).
The driving motivation for fiduciary law in the Commonwealth is captured in the oft-repeated refrain that fiduciary duties are proscriptive, not prescriptive. Fiduciary law proscribes conflict transactions, without inquiring into harm to the beneficiary or breach of any other legal norms. Stated another way, fiduciary law in the Commonwealth requires the fiduciary to exercise discretion unselfishly. This is in stark contrast to the American model, at least with respect to fiduciaries in business organizations, under which a breach occurs only when a conflict transaction is unfair, that is, only when the fiduciary has exercised discretion with inappropriate selfishness. (I make this point in Fiduciary Discretion, which should have cited Lionel.)
How should we understand this proscriptive regulation?
Many authors contend that fiduciary law has a deterrence function, but Lionel rightly asks, “what is being deterred?” According to Lionel, fiduciary law cannot plausibly be explained as a deterrent because the level of sanction (avoidance or recission of the conflict transaction or disgorgement of any profits) is simply too low to represent a viable deterrent for most fiduciary breaches. Moreover, the fact that “the no-conflict and no-profit rules operate independently of harm or loss to the beneficiary, bad faith of the fiduciary, the breach of other duties, or any consideration at all” means that the law is unjust because it is “willing to inflict sanctions on people who have not engaged in undesirable conduct.”
Lionel suggests that rather than playing a deterrent role, fiduciary law serves as prophylactic function. According to Lionel, “[d]eterrence operates by aiming to influence human decision-making; prophylaxis operates by the taking of precautions in an effort to avoid an undesirable outcome.” While some references to the prophylactic function of fiduciary law are simply references to the deterrence function, Lionel suggests a different understanding of prophylaxis, which is intimately connected to the duty of unselfishness. In short, fiduciary law prohibits conflict transactions to reduce the likelihood that the fiduciary will exercise discretion for improper reasons.
This is distinct from deterrence because it is not about changing the fiduciary’s motivation, but rather about implementing a precaution. While this is a rather subtle point, it serves to emphasize the crucial difference between fiduciary law in the U.S. and fiduciary law in the Commonwealth. Fiduciary law in the U.S. cannot plausibly be viewed as a prophylactic under Lionel’s reasoning because courts here do not impose the same sort of blanket proscription on conflict transactions that you see in the Commonwelath. Instead, courts are eager to understand whether the conflict transaction was fair and whether the fiduciary acted in good faith.
My description is an oversimplification of Lionel's argument (it's a blog post, after all) and insufficiently nuanced with regard to Commonwealth and U.S. fiduciary law, both of which are highly variegated, coming from multiple jurisdictions. But I hope that I was able to convey the gist of the argument. If you want to read more, you can find Lionel's paper here.
In a new paper that I am writing this semester, I will argue that the U.S. is uniquely tolerant of conflict transactions, and the lack of any blanket proscription is one evidence of that tolerance. Further, I will argue that this tolerance reflects our general disposition in favor of entrepreneurial action. More on those thesis in posts to come.
It's got to be the school that is the shortest total distance from both midtown Manhattan and Wall Street - the perfect deanship for our financially-minded readership! Here's the announcement:
The Benjamin N. Cardozo School of Law is beginning a search for a new Dean. The new Dean would succeed Matthew Diller, who has served with distinction for nearly six years, and who will be stepping down this summer. The law school will post a formal search announcement in the near future. In the meantime, immediate nominations, inquiries, and expressions of interest are welcome and encouraged. Please send them to the Cardozo School of Law Dean Search Committee via Kathleen Horton, Director of the Cardozo Dean's Office, at email@example.com.
I very pleased to announce an upcoming Georgia Law Review symposium on post-crisis financial regulation.
Financial Regulation: Reflections and Projections
March 20, 2015
Financial regulation is in a state of flux and the relationship between regulators and firms is constantly evolving. This conference will seek to illuminate where we have been and where we are going. The recent financial crisis provided the initial impetus for reform, but post-crisis regulation has developed in unanticipated ways.
Dennis Lockhart, the President and CEO of the Federal Reserve Bank Atlanta, will be our opening speaker. Our keynote speaker will be SEC Commissioner Luis Aguilar, who is a Georgia Law alum!
Here's the website, with more information. Participants include my fellow Glommer Erik Gerding and many Friends-of-Glom. I hope to see some Glom readers, as well. Athens is lovely in late March...
Deferred Prosecution Agreements have been in vogue since the unwarranted death of Arthur Andersen, and over at Jotwell, Larry Mitchell glosses Larry Cunningham's take on what to do about them. A taste:
DPAs can be useful, he tells us, but only if prosecutors approach the negotiation and structuring of an agreement as a governance problem. Ever since the 1996 Delaware Caremark decision, Delaware law at least formally has required that its corporations structure governance in a manner that discourages unlawful conduct and that makes it detectable when it occurs. Sarbanes-Oxley supplemented this approach with its own regulations. And who better to understand the governance of any particular corporation than its own board and executives?
I'll outsource the content to Matt Levine's new email, but you just don't see briefs filed by financial businesses against their regulators like the one Powhatan Capital filed against FERC, abetted by one of Philadelphia's good law firms.
There are sections headed "Dr. Chen’s Trades Were Not 'Wash-like' Or 'Wash-type' -- Whatever The Heck That Means," "The Staff’s Stubborn Reliance On The Unpublished, Non-Precedential Amanat Case Is Just Lame," and "Uttering the Phrase 'Enron' Or 'Death Star' Does Not Magically Transform The Staff’s Investigation." It's like an angry trader's dream of what a legal brief might look like ("This is America"!)
It's really quite amusing - check it out.
The line between television shows and films as a form has been blurred since HBO started making movies and episodic series. Watching the Golden Globes, I wondered whether the category "television" was now a catch-all for anything that didn't qualify as a feature film. (Under Academy Award rules, this means over 40 minutes, shown in a particular format at a "commercial movie theater" for the first time to the public for seven consecutive days in L.A. County). So, any "movie" that appears for the first time on pay cable, subscription cable, Netflix, Amazon, Hulu, etc. is "made-for-television," and any series appearing on similar outlets is also "television." ABC's Agents of Shield blurs the lines even further by creating a parallel story line for a television series with a subset of the same characters undergoing a parallel story arc in the Marvel Avengers movies (the "Marvel Cinematic Universe"). Impressively, if you watched the series in real time, the events in Captain America Winter Soldier are experienced by the characters in AOS on television the week the movie is released. That's fairly impressive.
The series premiered in September 2013, and I have to say that our family just missed it. But recently it appeared on Netflix, and my 13 year-old and I just finished Season 2. We agree it was worth the binge-watching!
The series picks up after the events in the movie The Avengers -- the "Battle of New York" has taken place and the Avenger heroes are well-known and action-figured. The events of Iron Man 3 have also taken place by the first episode, and references to events in Thor: The Dark World appear somewhat contemporaneously with the events of that movie. Of course, as we all know, Phil Coulson died in The Avengers, so we need a backstory to explain how he is very much alive. This backstory will actually become the building block of the master plot of Season 1. Unfortunately, none of the Avengers know that he is alive, so we will not see any of the six main Marvel superheroes on the show. Other characters, Maria Hill, Nick Fury, the Asgaardian who loves Thor, and the guy who turns out to be Hydra, show up later.
The basic premise is that because of his service and death, Phil gets a tricked-out super spy plane and a sports car to use to continue S.H.I.E.L.D. operations. He has a team that includes FitzSimmons (two genius scientists, Fitz and Simmons), a pilot/operations agent (Melinda May, a zen-like warrior), a loner operations agent (Grant Ward), and eventually a computer hacker (Skye, no last name). They must learn how to work together as a team, blah, blah, blah. Together, they fight various battles, including an ongoing conflict with a secret organization called Centipede financed by an evil corporation Cybertek. Centipede is trying to create an army of super soldiers using the serum made famous in Iron Man 3. Spoilers below.