October 01, 2015
icon Fed Whistleblower Loses Retaliation Suit
Posted by David Zaring

Here's the Second Circuit decision on the Carmen Segarra case.  She alleged that the Fed was too soft on Goldman Sachs, and secretly taped meetings between regulators and the bank in an effort to prove it.  And in some ways, she has influenced the policy debate more than you'd think any low level, very briefly employed bank examiner would, so she's already won something.

She lost her whistleblower suit, but that's not even a huge indictment of her.  She lost it because she tried to pull herself within the confines of the bank whistleblower statute by alleging that the Fed, and her supervisors (and her), were performing a service for the FDIC when they examined Goldman Sachs. The statute says, in the court's words, "if an individual is subject to liability under this statute, he or she must be '[a] person who is performing, directly or indirectly, [a] function or service on behalf of the [FDIC]."  The court said that it was "frankly silly" to suggest that Fed employees were working for the FDIC.  Put that way, it sort of sounds silly.

Is it so obvious, though?  In a complaint?  The purpose of the statute is to protect whistleblowers who work at among other things "Federal reserve bank[s]" who bring information to light about "gross mismanagement" in a way which performs a service to the FDIC, which (I think, the court didn't say) might insure Goldman (but wouldn't, I guess, if it doesn't have depositors; it is a bank holding company), would be involved in any trigger of orderly liquidation authority under Title II of Dodd-Frank, and, as a voting member of the Financial Stability Oversight Council, arguably oversees SIFIs, of which Goldman is one.  Segarra alleges that Goldman Sachs didn't have a conflict of interest policy, and her job was to examine the firm for safety and soundness.  The statute is supposed to be broadly construed.  Although I haven't yet been too convinced by Segarra, her argument is plausible enough.  One judge, who maybe agreed, but may be worried about the prospect of every bank examiner reporting, quitting, and suing, once wrongdoing is uncovered uttered a terse "I concur in the result."

Segarra's lawyers don't look classy, and her damages request was nuts, but I'm not quite sure why her claim has been given the back of the hand quite so tersely, in a per curiam opinion that doesn't enjoy the the support of all three members of the court.  And do let me know if I've missed something.

Post updated to clarify the FDIC-Goldman relationship

Another update - here's the district court opinion, which is more articulate about the problems with the complaint.  Courts don't like to regulate banking supervision, and the district court depends on a conclusion that banking regulation is very informal, which would make a claim that a bank is ignoring a recommendation from supervisors not the same thing as a bank violating the law. It would have been nice if the Second Circuit had evaluated that part of the opinion, given that banking regulation is generally extremely informal.  It's not clear to me that Congress didn't want whistleblowers to police this sort of supervision.

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September 29, 2015
icon Announcing New "Fiduciary Law" eJournal from SSRN
Posted by Gordon Smith

I am very pleased to be editing the new "Fiduciary Law" eJournal on SSRN. You can see a first cut at the papers in the journal here, and you can subscribe to the journal here. Below is a description of the contents of the journal and a list of our amazing Advisory Board!


Description: The Fiduciary Law eJournal includes working and accepted paper abstracts relating to fiduciary law in myriad private and public contexts. Fiduciary principles govern a remarkably broad and diverse set of relationships, offices, and institutions. They govern a wide array of professional relationships, including interactions between lawyers and clients, doctors and patients, and investment advisors and clients. They also underlie basic legal categories of relationship, including agency, trusts, and partnerships. They are the basis on which most private and public offices are held and executed. Not incidentally, they provide the core governance framework for the administration of private and public organizations, from corporations, charities, and hospitals to universities and school boards. Both U.S. political theory and international legal theory also share a rich tradition of employing fiduciary principles to explain and justify the exercise of state authority. Cutting across many varied fields of legal studies, the eJournal is designed to serve a cross-indexing function for legal scholars interested in fiduciary law, with the ultimate objective of stimulating communication and cross-fertilization. The eJournal welcomes a broad range of methodological approaches, including those drawn from economics, history, philosophy, political science, psychology, and sociology.

Advisory Board
William Donald Bain Family Professor of Corporate Law, Washington and Lee University School of Law

Professor of Commercial and Company Law, University of Luxembourg, European Corporate Governance Institute (ECGI)

Professor of Equity and Trusts, University of Sydney Faculty of Law

Professor of Law, William & Mary Law School

Professor of Law, UNSW Australia - Faculty of Law

David F. Cavers Professor of Law, Duke University School of Law

Allen & Overy Professor of Corporate Law, University of Oxford Faculty of Law, European Corporate Governance Institute (ECGI)

Michaels Faculty Research Scholar Professor of Law, Boston University School of Law

Bruce W. Nichols Visiting Professor of Law, Harvard Law School, Professor of Law, DePaul University College of Law

Professor of Law, Attorney at Law (New York), Humboldt University of Berlin - Faculty of Law

Senior Lecturer, Melbourne Law School

Associate Professor of Law, McGill University Faculty of Law

Reader in Private Law, King's College London, King's College London – The Dickson Poon School of Law

John L. Gray Professor of Law, Harvard Law School

Sir William C. Macdonald Professor of Law, McGill University, Faculty of Law, Paul-André Crépeau Centre for Private and Comparative Law, Professor of Private Law, King's College London - The Dickson Poon School ofLaw

Associate Professor of Law (with tenure), University of Notre Dame

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September 28, 2015
icon Conference: Contract, Status, and Fiduciary Law
Posted by Gordon Smith


I am very pleased to be writing a paper for this conference:

The McGill University Faculty of Law is pleased to announce the forthcoming conference - Contract, Status, and Fiduciary Law – to be held at McGill on 6-7 November 2015. The conference will feature papers by leading legal theorists exploring philosophical questions concerning relationships between contract law, moral and legal conceptions of status, and fiduciary law. The conference is being convened by Professors Paul B. Miller (McGill University) and Andrew S. Gold (DePaul University / Harvard University). A conference volume edited by Professors Miller and Gold will be published by Oxford University Press in 2016.

A conference schedule, list of presenters, and additional details may be found here

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icon Law and Entrepreneurship Association Call for Papers
Posted by Gordon Smith

The tenth annual meeting of the Law and Entrepreneurship Association (LEA) will occur on January 22-23, 2016 at the University of San Diego.

The LEA is a group of legal scholars interested in the topic of entrepreneurship—broadly construed. Scholars include those who write about corporate law and finance, securities, intellectual property, labor and employment law, tax, and other fields related to entrepreneurship and innovation policy.

Our annual conference is an intimate gathering where each participant is expected to read and actively engage with all of the pieces under discussion. We call for papers and proposals relating to the general topic of entrepreneurship and the law.

Proposals should be comprehensive enough to allow the LEA board to evaluate the aims and likely content of papers they propose. Papers may be accepted for publication but must not be published prior to the meeting. Works in progress, even those at a relatively early stage, are welcome. Junior scholars and those considering entering the legal academy are especially encouraged to participate.

To submit a presentation, email Professor Victor Fleischer at victor.fleischer@gmail.com with a proposal or paper by November 15, 2015. Please title the email “LEA Submission – {Name}.”

For additional information, please email Professor Victor Fleischer at victor.fleischer@gmail.com.

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September 23, 2015
icon Welcome to Georgia Law, Gregg Polsky!
Posted by Usha Rodrigues

I'm very pleased to announce that starting next fall I will have Gregg Polsky as a colleague here at Georgia Law.  Not only is Gregg a renowned tax scholar, but he plays in some of the same sandboxes I do: private equity, IPOs, entrepreneurship, and other fun stuff. Welcome to Georgia, Gregg!

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icon Update On Sean Griffith's Sweetheart Settlement Campaign
Posted by David Zaring

Bainbridge and Allison Frankel have the details. The standing hurdle has been cleared, so that's good news for the campaign.

Permalink | Corporate Law | Comments (View) | Bookmark

September 22, 2015
icon The Stuart Parnell Sentence
Posted by David Zaring

Just as no jailed financial executives in the wake of the last crisis is a pretty big outlier, the sentence for Stuart Parnell, the CEO of the Peanut Corporation of America - 336 months, which is, essentially, the rest of his life - takes the breath away.

It also illustrates just how surprising it is that big sentences were avoided, as they go up, up, up the more money is involved.  Parnell looks like he was directly involved in a decision to affirmatively sell peanuts that tested positively for salmonella, and that isn't exactly good.  But check out the roteness of this calculation, per the DOJ's own press release:

Judge Sands took into account the fraud loss of PCA’s corporate victims when imposing today’s sentence.  The court found that Stewart Parnell and Mary Wilkerson should be held accountable for more than $100 million but less than $200 million in losses, and Michael Parnell should be held accountable for more than $20 million but less than $50 million in losses.  The court also found the government established evidence that Stewart Parnell and Mary Wilkerson should be accountable for harming more than 250 victims, and Michael Parnell should be accountable under federal sentencing guidelines for harming more than 50 victims.  The court additionally found that the Parnells should have known that their actions presented a reckless risk of death or serious bodily injury.

If I were defending this on appeal, I'd want to be pretty careful with representations like the one below, given the likelihood of type II and type I error, but maybe the Feds have the goods:

Expert evidence at trial showed that tainted food led to a salmonella outbreak in 2009 with more than 700 reported cases of salmonella poisoning in 46 states.  According to the Centers for Disease Control and Prevention (CDC), based on epidemiological projections, that number translates to more than 22,000 total cases including nine deaths.  The court found that the evidence presented at trial linked Stewart and Michael Parnell’s conduct, and specifically PCA’s contaminated peanut products, to the victims’ illnesses.

And if I were Volkswagen executives, I'd start worrying.


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icon Is Technological Asymmetry the New Informational Asymmetry?
Posted by Christine Hurt

The theory of informational asymmetry drives the securities regulation disclosure regime.  Issuers have more and better information on securities than purchasers, so requiring periodic and ongoing disclosure of relevant information reduces that asymmetry, leading to a more efficient market and possibly a fairer market.  To that end, purchasers should receive the same information at the same time.  

Differences in purchasers' abilities to analyze and use the information exist, but the disclosure regime assumes that a few things will happen.  First, those with more acumen, experience, skill and intelligence will use the information to make informed decisions, moving the share price in an efficient market.  All purchasers benefit from this price discovery.  Second, a market for information analysis will form, and investors can access this acumen, experience, skill and intelligence by hiring financial advisors or purchasing research reports.

Currently, a new type of asymmetry seems to be challenging this carefully (?) constructed disclosure regime:  technological asymmetry.  Though asymmetries in acumen, experience, skill and intelligence could be described as technological asymmetries, I am referring to computer technologies.  I was reading Tom Lin's very interesting papers (here and here) describing computer algorithms and high-speed traders as "new investors" and "cyborg investors," and I was wondering if it helped more to characterize these new developments not as a new category of investor, but a new category of asymmetry.

The investors are the same as they always have been -- retail, institutional, smart, dumb, etc.  But, now the smart investors have new tools.  Securities Regulation seems to understand that investors will use whatever tools are at their disposal -- calculators, experts, slide rules, spreadsheets, computers, models, etc.  But at some point new technologies seem to jump the boundaries of what is foreseeable.  Imagine in the 1980s a law professor saying that students can bring anything they want into the completely open book exam "besides another human being."  (I think I heard this statement from my law professors in the early 1990s).  Then an enterprising young student with a lot of resources brings in a 2015 smart phone with the power of the internet.  Or a device that allows her to read the exam in .4 seconds and express her thoughts on paper in the time it takes to think.  Then, the professor has to change the "completely open book" rule.  So, does securities regulation need to change some rules?

I'm going to separate the "new technologies" into two different categories.  The first is just supercomputing power that allows for the digestion and operationalization of data in ways and at a speed that would have been unthinkable decades ago.  (I am ignoring technologies that allow for traders to break the law in new ways, like hackers.)  So, if some traders receive EDGAR filings a few seconds before the market and are able to trade using software-based trading, is that a technological asymmetry?  At the beginning of the EDGAR portal, I don't think anyone would have thought that having a 100 page document a few seconds before the market would lead to trading on nonpublic information, but now it does.  And what about high-frequency trading, which allows some traders to  "see" trades nanoseconds before the trade completes, allowing traders to use that "nonpublic" but almost public information.

I'm also interested in software that can find patterns in huge amounts of data and use it to a trading advantage.  Though the information is theoretically public, its practically nonpublic to most people using standard technologies.

So, how does securities regulation address technological asymmetry?  Or does it?  

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September 21, 2015
icon Volcker’s Covered Fund Rules: When Banking Law Borrows from a Securities Law Statute
Posted by Erik Gerding

The Volcker Rule’s covered fund provisions have not received the attention they deserve. Like the more well-studied proprietary trading rule, the covered funds rule restricts bank investments in the name of limiting their risk-taking and mitigating their contribution to systemic risk. As with proprietary trading, legislators and regulators faced a decision with covered funds on how to define those bank activities that would be off-limits. However, unlike with prop trading, Congress, and federal regulators subsequently, chose to define the scope of the covered funds rule largely by reference to an existing statute.

In a recent short article just published in The Capital Markets Law Journal (an earlier ssrn draft is available here), I examine this decision by Congress and federal regulators. In crafting the statutory provision and the final rule respectively, Congress and federal regulators chose to apply the covered funds rule to bank investments in entities that would otherwise be investment companies but for the exemptions in Sections 3(c)(1) and 3(c)(7) of the Investment Company Act. This importation from the Investment Company Act – in what I call a trans-statutory cross reference – has profound consequences.

A first cut

Using Investment Company Act exemptions to set the scope of the covered funds rule has advantages. The Investment Company Act exemptions set boundaries that have already been defined by regulators and market expectations. These particular trans-statutory cross references work to circumscribe bank investments in, and sponsorships of, a wide range of entities. Congress appears to have concluded that private equity and hedge fund investments posed inordinate risks for banks and the government safety net. Since those two types of funds typically use those two Investment Company Act exemptions, the trans-statutory cross references seem to accomplish Congress’s intended purposes. A range of other entities also use these two exemptions, but the five federal regulators that promulgated the final rule ultimately carved many of those entities out. Still, many non-real-estate-related securitization vehicles would be covered by the rule.
On the other hand, prohibiting banks from investing in particular exempted funds does not necessarily mean that banks will move their money to safer locales. Many real estate securitizations, for example, are not covered by the rule. Banks could move capital to other exempted funds or even restructure existing investments to fall under other Investment Company Act exemptions not covered by Volcker. More on this in a moment.

When securities law serves banking law purposes

Stepping back from its immediate market consequences: the trans-statutory cross references at the heart of the covered funds rule highlights the ways in which the Investment Company Act, in particular, and securities regulation, more broadly, can and cannot regulate effectively the systemic risk posed by banks and other financial institutions. In other words, the tools of securities relation are in some ways aligned and in some ways mismatched with the purposes of prudential regulation. The trans-statutory cross references exacerbate Volcker’s problems of under- and over-inclusiveness in limiting the risk-taking of banks. The portions of the Investment Company Act most useful for systemic risk are its restrictions on leverage, which are somewhat unique in the pantheon of securities laws and function most similarly to banking rules.

Trans-statutory cross references can delegate power from one agency to another

Volcker’s trans-statutory cross references have not only policy but also political implications. By using a securities law to define the scope of a banking law, the covered funds rule effectively transfers critical policymaking functions from one group of agencies (banking regulators) to another (the SEC). This has potentially profound implications given the differing statutory missions, cultures, and personnel of those agencies. Securities regulators also face different interest groups and have different institutional pressure points compared to their banking counterparts.

Shifting battlegrounds

How the SEC will wield this power to define the scope of a banking law remains to be seen. Some commentators have doubts as to the SEC’s interest and ability to pursue systemic risk regulation alongside its traditional investor protection role. The covered funds rule will provide one test of the SEC’s resolve. Banking industry interest will likely now focus on other Investment Company Act exemptions. SEC decisions to narrow or expand other Investment Company Act exemptions – particularly Section 3(c)(5) or Rule 3-a-7 – now have cascading consequences by virtue of Volcker’s covered fund provisions. After Volcker, banks and other parties in securitization markets may seek to structure securitizations to rely on one of these other exemptions. Efforts to narrow these exemptions will likely meet strong opposition from banks and the securitization industry. In considering whether to narrow or enlarge these exemptions, the SEC must now consider not only whether investors in collective investment funds are protected. It must also consider the effects on bank risk-taking and systemic risk.

A larger lesson

The political dynamics outlined in my paper point to lessons for policymakers considering using trans-statutory cross references in the future. Trans-statutory references may take power from one regulatory body and give it to another. In the case of the covered fund rules, power over prudential rules was, perhaps unintentionally, delegated to a securities regulator. This works well if the statutory drafters trust the agency from whom power was taken less or trust the agency to whom power was given more. It works if the concern is to check potentially overzealous pursuit of policy objectives by the traditional regulator or to remedy potential shirking by a captured body. However, trans-statutory cross references may fail if the newly empowered regulator works at cross purposes to the statute it now has authority over. Trans-statutory cross references reflect a lesson that is old but one that bears repeating nonetheless: technical drafting decisions can have outsized and unintended political consequences, particularly with respect to the most important question of all – who decides policy going forward.

Cross-posted at Columbia's Blue Sky Blog.

Permalink | Administrative Law, Financial Institutions, Securities | Comments (View) | Bookmark

September 18, 2015
icon The Doomed Lawsuits Against ALJs
Posted by David Zaring

I think they're doomed, but opponents of the 25 year old tradition of SEC administrative proceedings have had a good couple of days.  Distressed Debt Diva (or whatever the right sobriquet is) Lynn Tilton has convinced the Second Circuit to hear her claim that appearing before an ALJ would be unconstitutional, which, if the court ruled in her favor, would create a circuit split with the 7th Circuit.  

Also, the Wall Street Journal made much of a colloquy before Judge Richard Berman, who is one of the few judges who has ruled that ALJ proceedings are unconstitutional.  He wanted to know more about the farcical decision by the SEC to send one of its ALJs a letter inviting him to tell them whether he was biased against defendants.  He quite properly refused to answer, and they promptly reassigned him to another case.  "You'll want to come up with a good explanation why," Judge Berman approximately told the agency.  

I can't claim to understand what the SEC was doing with that missive to its ALJ, though it's always worth observing that ALJs work for the commissioners (much to their displeasure, ordinarily), and it isn't totally obvious that it is wrong to send a missive to an employee asking him to explain himself.  But, oddly, adjudicative subordinates have a great deal of independence, to the point where I think we could consider them to be comparable to those most independent of regulators, bank supervisors.  We wouldn't expect Janet Yellin to bother filing an affadavit explaining her thinking on interest rates if President Obama instructed her to do so, and there's no question that he is her boss.

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September 15, 2015
icon Labor and Employment at Penn State
Posted by David Zaring

Penn State has two openings, and something like one in every 720 Americans is an alum, which is one of my favorite statistics.  Details after the jump.

more ...

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September 11, 2015
icon The JOBS Act at Work
Posted by Usha Rodrigues

The WSJ's front page observes that Tech Firms Are Notably Scarce in IPO Parade. Unlike last week's news, this one didn't surprise me one whit.  Here's why: the JOBS Act of 2012 was ballyhooed as a much-needed way to make it easier for companies to go public, rather than having to look to foreign markets or staying private to avoid the burdensome regulation epitomized by those dreaded words "Sarbanes-Oxley." 

But the thing is, the JOBS Act didn't just make it easier for firms to go public. Instead, it was more like enabling legislation in the securities field. Here's what Congress says to private companies in the JOBS Act.

Congress:  "Hey, do you want to go public? We'll make it easier!  You don't have to report as much and you can do a test run with the SEC and once you're public you don't have to report as much stuff as you used to" (Title I). 

Company: "Actually, we'd prefer to stay private."

Congress: "Oh, we can help you with that, too!  We used to force companies like Facebook to go public if they had too many shareholders, but we'll change that (Title V).  And now you can advertise to the general public (Title II) and raise more money (Title IV)!  Oh, and your brother-in-law that has the crazy idea of making tea out of lawn-clippings?  We'll let the general public invest in that, as long as they don't risk too much money and he wants $1 million or less...well, we'll let the SEC sort out the details on that one. (Title III, crowdfunding, final rules expected sometime this fall.  Maybe)" 

Company: "Cool, thanks.  So I think we're going to stay private because even with the JOBS Act the public market is kind of harsh."

Harsh is right.  Per the WSJ: Shares of Chinese e-commerce giant Alibaba Group Holding Ltd. dropped below their IPO price in August and are down nearly 39% this year. Shares of Twitter Inc. are down 23% this year and, at $27.71, aren’t much above their $26 IPO. Productivity-software company Box Inc.’s shares closed Thursday at $13.86, below their $14 IPO price... Zulily Inc., an online retailer that went public in 2013, agreed to be acquired by Liberty Interactive Corp. in August for $18.75 a share, after going public at $22."

Meanwhile, we have a multiplicity of "unicorns," privates companies worth over $1 billion. Paul Bard, director of research at Renaissance, is quoted in the article as saying “Private valuations…are supposed to factor in a discount for the added risk an investor is taking...Many of these private valuations are ignoring the fundamental risks involved in achieving their projections." 

The understatement of the year, Mr. Bard. Sounds like a bubble to me.  I'm not surprised that there aren't more tech IPOs.  Given how easy the JOBS Act made it to stay private, I'm surprised that there are any. 

Permalink | IPOs, JOBS Act | Comments (View) | Bookmark

September 10, 2015
icon If This Chart Is Correct, I'm Going To Wonder About EMH
Posted by David Zaring

I can't really figure out the denominator in this chart expressing the three year performance of university endowment managers, who are apparently paid too much (that's the gist of the story). And they are probably underperforming an S&P index over that period.  But if the returns to these managers are annualized?  Most big universities are able to get their lumbering endowments to do 11-12% a year?  In return for a couple of million bucks in compensation?  Promising that kind of return for your gold/real estate play usually constitutes grounds for prosecution by the SEC.  Also interesting: Emory and Notre Dame have more money that Cornell, Dartmouth, and UVA.

Permalink | Accounting | Comments (View) | Bookmark

September 08, 2015
icon Family Film Blogging: Fantastic Four
Posted by Christine Hurt

So, my Labor Day weekend consisted of a thousand loads of laundry, creating a dry erase wall with whiteboard paint and watching THREE Fantastic Four movies.  Yes, THREE.  For some ridiculously low price, my eight year-old and I bought a DVD collection of Fantastic Four (2005), Fantastic 4:  Rise of the Silver Surfer (2007); Elektra (2005); and Daredevil (2003).  (The DVD irrationally contains the director's cut of the latter, making it rated R and unappealing for the family.  Sorry, Ben Affleck, we won't be needing you.)  So, we watched the first two and then decided we had to catch the 2015 version at the dollar movie.  Because it had a 9% rating on Rotten Tomatoes, I was understandably skeptical.

So, none of the F4 movies are very good.  I guess no one knew how to make a good superhero movie until Iron Man in 2008.  The early versions are a little campy and silly, and even Chris Evans, who makes an darn good Captain America, grates on me as Johnny Storm/Human Torch.  The 2015 reboot reinterprets the four accidental superheroes as teenagers/young adults, but this doesn't improve upon the original story.  Reed Richards is an underappreciated genius being flunked out of science fairs by his ignorant teachers, and Ben Grimm is his grittier (grimmer?) best friend, whose abusive family conveniently runs a junkyard.  Reed is snapped up at the science fair (Meet the Robinsons, anyone?) by Dr. Storm, who wants Reed to be a scholarship student at his "institute," where he can perfect his teleportation machine.  Unbeknownst to Reed, his teleportation machine hasn't been teleporting objects to some unknown spot on Earth and back, but to a separate dimension.  And, although Dr. Storm and his scientists (including his daughter, Sue) hadn't been able to make the objects return from the other dimension, Reed has.  So, Reed joins Sue, her brother Johnny, and a recluse named Victor Von Doom (no foreshadowing there) to complete the project to send humans to the other dimension to learn of its powers.  Once the team successfully sends a monkey to the other dimension and back, they learn their project will be completed by NASA astronauts who will be the first humans in the other dimension.

This rubs Reed, Johnny and Victor the wrong way.  This bitterness seems illogical given the fact that none of these young guys have had any sort of astro-anything training.  In the original F4, all of the team worked for NASA at one time, and Johnny and Ben were pilots.  Sending these kids in space to a different world would seem fairly unbelievable and negligent.  But, the boys share a flask after hours and decide to take the teleportation machine for a spin before NASA can get "first steps" credit.  But, before they go, Reed calls Ben and invites him to tag along on the joyride.  Amazingly, there's no sort of security to get through to launch the teleportation machine, so the boys go.  Bad things happen, and when they are trying to come back, the new dimension "alters their DNA."  Sue, who ran to the control room when she (and she alone, apparently) received a notice on her phone that the machine had been launched, is also affected by the re-entry.  (As my 13 year-old put it, "she got some dimension on her.").  Voila, the Fantastic Four and Dr. Doom.

The movie suffers badly in comparison to the recent movie additions to the Marvel Cinematic Universe which combine really good special effects, a great cast and smart writing.  The science here is so sloppy and poorly presented that it makes it hard not to laugh.  The characters have very little witty banter or even intelligent dialogue.  The "action" takes up a small part of the movie, and the special effects seem decades old.  The difficulty in presenting the F4 story is that most of it is backstory (the five become a team, bad things happen, the team learns to use their powers, an ending showdown with Dr. Doom over a vague power conflict).  Both the 2005 and the 2015 version struggle with how to have an action movie that requires a great bit of wind-up and that does not have a concrete conflict.  But, Captain America had the same problem of a long backstory.  However, the wind-up there is told really well with a great script and about 20 more minutes of movie, and the conflict of WWII and Hydra provides enough action.  Another problem is that the comic book powers of the F4 characters don't translate well to a realistic superhero genre.  Reed Richards can stretch his body in a lot of directions?  That's really hard to depict in live-action without looking stupid.  Invisibility (Sue) is also hard to depict on film, though the 2015 version seems to do it better than the 2005/2007 films.  The Incredibles family makes all this look cool in Pixar animation, but it's tough to pull off in live-action.

Apparently, a sequel is already in the works.  We can only hope that the Avengers aren't in it.

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icon Remembering Claire Moore Dickerson
Posted by Christine Hurt

Last week, I received news that a great mentor and colleague in corporate law, Claire Moore Dickerson, passed away.  I feel very fortunate to have been one of the many recipients of her warm and generous spirit.  The following comes from Lynne Dallas:

Claire passed away Wednesday morning, September 2, 2015, from pancreatic cancer.  She was one of the founders of our Women’s Corporate Law Professor Group and a great scholar, teacher, colleague, and dear friend to many of us. 

A compilation of her scholarly work is published under the title “Challenging Borders in Business Law,” published by University of British Columbia Law Faculty 2014, ISBN 978-088865-152-5.  Dr. Janis Sarra edited the book and worked tirelessly to publish it before her death. Terry O’Neill, Kellye Testy, Dr. Martha S. Tumnde, Dr. Janis Sarra, Faith Stevelman, Cheryl Wade, Cynthia Williams and myself wrote introductions to her many articles for the book.  Claire was very pleased and honored by this tribute to her work.

Claire died peacefully, pain-free, and surrounded by her family. Post diagnosis – a period of two years –she experienced a good quality of life.  She took advantage of her retirement from Tulane, reading good books, taking long walks around Gloucester, and visiting with family and friends.  She was a delight to talk to virtually up to the end.  Her humor, concern for all those around her, and intelligence animated all her conversations. She has provided an inspirational model for those of us in contact with her during this period due to the courage and upbeat attitude she exhibited throughout her illness.

Claire’s husband, Tom Dickerson, informs me that there will be a burial service in either Gloucester or Beverly Farms, Massachusetts on Saturday, September 12th at 11am, as well as a memorial service in Rye, New York on Saturday, October 17th at 2pm. Please e-mail Tom,tpdickerson@gmail.com, if you are able to join his family at either of these events, so that he can provide details when they become available.

Donations may be made in Claire’s memory to the Dana-Farber Cancer Institute, http://www.dana-farber.org/gift.


“ABOUT CLAIRE DICKERSON” from Challenging Borders in Business Law, The Scholarship of Claire Moore Dickerson (Dr. Janis Sarra ed. 2004)

“Professor Claire Moore Dickerson is Senator John B. Breaux Professor Emerita of Business Law at Tulane University Law School, United States, and permanent visiting Professor at the University of Buea in Cameroon, Professor Dickerson has been awarded the International Academy of Comparative Law, Medaille d’honneur, Centre Francais du commerce exterieur, Republic of France.  Acknowledged globally as a distinguished scholar in business associations, contracts, comparative law, and international business transactions, her scholarship frequently examines the intersection between commerce and human rights.

Claire Moore Dickerson practiced at the international law firm of Coudert Brothers in New York, and following twelve years and partnership there, she became partner of, and later counsel to, Schnader Harrison Segal & Lewis, a Philadelphia-based firm.  In 1986, Professor Dickerson began her teaching career at St. John’s University School of Law, New York, and then held the title of Professor of Law and Arthur L. Dickon Scholar, Rutgers Law School, Newark.  She was co-director of Rutgers’ Global Legal Studies program, and, later, holder of the Visiting Lowenstein Chair.  

Professor Dickerson’s research interests include the application of socioeconomic principles to business-related areas of law, her research allowing her to travel extensively within Africa, the United States and internationally.  Claire Moor Dickerson graduated AB magna cum laude, 1971, Wellesley College; graduated JD in 1974 from Columbia Law School where she was a Stone Scholar; and she holds an LLM in taxation, 1981, New York University.

Active in several legal organizations, including the Law & Society Association and the American Society of International Law, Professor Dickerson has served on the executive committee of the socioeconomic section of the Association of American Law Schools.  In 2008, she authored a report for the World Bank, assessing the legal framework for nano-businesses in developing countries.  She is a founding member of the ad hoc women’s corporate law scholars’ collective. 

Claire is fluently bilingual in French and English, and is a passionate kayaker, skier and mountain hiker all of which she does with her wonderful daughters, Caroline Dickerson and Susannah Dickerson, and her husband and co-traveler of many years, Tom Dickerson.”

Notification has gone out from the Business Law Section of the AALS that Claire will be honored at the 2016 meeting for her "thoughtful, caring and inspiring mentorship."   


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