The Conglomerate is pleased to host our second online teaching roundtable of the summer today and tomorrow. We have gathered together some of my favorite scholars and teachers who will be discussing how they approach the course in Banking Law/Financial Institutions during a time of legal upheaval.

Joining us for the roundtable are Lawrence Baxter (Duke), Adam Feibelman (Tulane), Anna Gelpern (American), Heidi Schooner (Catholic), and Arthur Wilmarth (George Washington).

As with last week’s engaging roundtable on teaching Contracts, we give our guests free rein to discuss topics of their choice. Here are some of the questions they may examine:

• How has the financial crisis changed the subject matter of the course?
• How much do you focus on non-bank financial institutions?  Is “shadow banking” (financial instruments and markets, like asset-backed securities, that perform many of the same economic functions and pose some of the same economic risks as depository banks) a component of the course?
• If non-bank institutions are increasingly emphasized, how do you define the boundaries and central themes of the course, so that it is still coherent and manageable? How much do you focus on financial instruments and markets?
• How do you cover the sheer scope of Dodd-Frank? What topics are most important?
• How much of a historical focus helpful in teaching?
• How much of the economics of banking do you teach? Is it a useful frame for the course, or do you dip into economics as needed?
• How do you incorporate international or transnational subjects into the course?
• How do you balance policy issues with preparing students to be practitioners? How does one incorporate practitioner perspectives/problem solving dimensions into an introductory course when the material is so highly technical and likely to be alien to most students?
• How do you “sell” students (and even colleagues) on what the course is and why it is relevant for students? (I am sure many of us have a “friend” who has had to have this conversation with colleagues).

Let’s get started!

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Usha and I would like to thank our guest panelists in this Roundtable on Teaching Contracts:  Larry Cunningham (George Washington), Gillian Hadfield (Univ. of Southern California), and Claire Hill (Minnesota). Erin O’Hara (Vanderbilt) will be making some follow-up comments on the roundtable later in the summer.

They have provided a marvelous discussion and some wonderful insights on teaching.  You can access the entire roundtable here.

This coming Thursday and Friday, June 16-17, the Conglomerate will be hosting our second Teaching Roundtable ofthe summer.  We are delighted that a new cast of law professors will be discussing teaching the course in Banking Law/Financial Institutions.

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Today we kick off a series of summer roundtables, in which we invite law professors to share their insights and innovations in teaching various business law courses. Today and tomorrow, we will focus on Contracts. In addition to Usha Rodrigues, we will be joined by Larry Cunningham (George Washington), Gillian Hadfield (Univ. of Southern California), and Claire Hill (Minnesota). Erin O’Hara (Vanderbilt) will be making some follow-up comments on the roundtable later in the summer.

We make no warranty (express or implied) as to what our panelists will write about. There are a number of different questions and topics they might talk about, including:

• Do they expose the students to transactional lawyering in the course?
• Can we start preparing students to solve problems in a planning mode in addition to a litigation mode in a first year course?  How do we expose students to the "creative" or "craftsmanship" aspects of contract law? 
• How can we engage students in reading and interpreting (and perhaps even drafting) actual contracts and not just portions of contracts distilled in judicial opinions?
• If they do introduce a transactional aspect into the course, how do they balance it with the traditional objectives of teaching case law (and perhaps U.C.C.) analysis and blackletter contract law? 
• Does this course need to fill a special role in the first year curriculum?
• What can professors do better in this course to prepare students for different types of legal practice?   
• Do they bring the financial crisis and its contract law dimensions into the course?
• How do they make your innovations work in an often larger sized first year required course? 

I am eager to read our panelists’ posts.

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The business world and legal practice have been turned upside down in the last five years. Law schools face daunting challenges to prepare graduates not only for tough job markets, but also for long term careers in a field that now seems to change at warp speed.

This summer, the Conglomerate is organizing a series of roundtables on teaching business law courses. We have invited groups of law professors to share their innovations and ideas on how they are teaching and adapting particular courses. (We are in early stages of planning a roundtable on the law school business curriculum more generally for later in the summer.)

We have given our roundtable guests free rein to talk about how their approaches and innovations in teaching. Among the topics they may discuss are:

• Whether and how they incorporate transactional elements into their course?
• How do they decide what graduates most need (and may not get elsewhere in law school or as a young lawyer) for practice?
• How their course fills gaps that might exist elsewhere in the law school curriculum?
• To what extent does the course incorporate business, economic, or other theoretical concepts?
• How have they adapted the course in light of the financial crisis and regulatory response?
• Does ethics or professional responsibility fit into the course?

Our hope is that the insights of our guests will benefit not only first time teachers, but also veteran professors. Here is our line-up of roundtables for the summer:

• Contracts: June 9-10 (tomorrow and Friday);
• Banking/Financial Institutions: June 16-17;
• Corporate Finance: June 23-24
• Business Associations/Corporations: July 18-19
• Securities Regulation: TBA

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Thanks to our guest Barbara Black for joining Christine and me in previewing and reviewing the oral argument in Erica P. John Fund v. Halliburton.  We hope to revisit the case when the opinion comes down.

For now, you can see all the posts in our roundtable below: 

• Intro: the Supreme Court to dine on a casserole of class certification and securities fraud
• Thinking about Halliburton
• Halliburton oral argument
• The friendless Fifth, "rebuttable" cooked over-easy, and the Rules are rules
• The arguments I wish I heard
• Class certification versus motion to dismiss
• What will the Supreme Court do?
• Bite-sized

You can continue to follow Professor Black over at the Securities Law Prof Blog.

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Here are my initial thoughts after reading the transcript of today's oral argument in Erica P. John Fund v. Halliburton Co.:

The most important message:  Nobody, not even defendant's counsel, supports the Fifth Circuit's position that requires plaintiffs to prove loss causation at the class certification stage. 

The plaintiffs' and government's oral arguments, and their colloquys with the Justices, were rather bland.  Petitioner-Plaintiff's argument was relatively straight forward:  loss causation is a common issue and not appropriate at the class certification.  The Justices asked a number of questions but, with the possible exception of Justices Scalia and Alito, no one seemed inclined to revisit the Basic presumption or reach other policy issues. 

The Justices asked the fewest questions of the attorney for the government, who argued as amicus curiae supporting Petitioner.  Whether this reflects a deference for the government's position (who agreed with plaintiff) or whether the Justices were simply taking a breather, of course, can't be known.

The transcript became a more interesting read with the defendants' oral argument and the Halliburton attorney's herculean effort to revise the Fifth Circuit's holding so that it is really all about the Basic presumption of reliance.  As articulated by Halliburton's attorney, the Fifth Circuit wasn't focusing on loss causation at all, but price impact.  Since the Basic presumption is rebuttable, any showing that severs the link between the misrepresentation and stock price defeats the presumption.  After being pressed by Justice Kagan, he also allowed that (contrary to the 5th Circuit, which put the initial burden of production on plaintiff) Basic puts the initial burden on the defendant to show absence of price impact; once that is met, the burden is on the plaintiff to show by a preponderance of the evidence that the market price was distorted.  This is, he asserts, all part of the Basic reliance presumption and is so much less onerous than establishing loss causation.

Justices Ginsburg and Kagan separately made the observation that it seemed that defendant's argument essentially requires the plaintiffs to prove their case on the merits at the class certification stage.  No, not at all, asserted defendant's attorney.  Justice Kagan: "in your world the Basic presumption is not worth much."

Justice Scalia dropped a hint of where he might be going.  He asked the plaintiff's attorney why not just agree that loss causation is not required at the class certification stage and remand to the Fifth Circuit to adopt the theory that defendants say they've already adopted.  That would be a pyrrhic victory for plaintiffs, he observes. Plaintiff's attorney argued that would be a really bad result since loss causation and reliance are two distinct elements, but it's not clear he got that argument across.

My impression, which of course could prove to be totally wrong, is that, consistent with other recent securities opinions, the Justices are not looking to revisit Basic or address larger policy questions.  They don't want to adopt the most extreme Circuit position (remember they didn't adopt the 8th Circuit reasoning in Stoneridge that would have eliminated "scheme liability"), but there's no indication that they want to relax the requirements for class certification.

I look forward to reading others' initial reactions.
 

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Between today and Tuesday, the Conglomerate will be hosting a roundtable on the Erica P. John Fund v. Halliburton case that will be argued before the Supreme Court this coming Monday. The question in the case revolves around whether the 5th Circuit erred in requiring that plaintiffs in a securities fraud case must prove loss causation as a condition to certifying a class. The following is a more elaborate formulation of the questions (taken from the Supreme Court web site and cut-and-pasted from a brief in the case) in the case:

1. Whether the Fifth Circuit correctly held, in direct conflict with the Second Circuit and district courts in seven other circuits and in conflict with the principles of Basic v. Levinson, 485 U.S. 224 (1988), that plaintiffs in securities fraud actions must satisfy not only the requirements set forth in Basic to trigger a rebuttable presumption of fraud on the market, but must also establish loss causation at class certification by a preponderance of admissible evidence without merits discovery.

2. Whether the Fifth Circuit improperly considered the merits of the underlying litigation, in violation of both Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), and Federal Rule of Civil Procedure 23, when it held that a plaintiff must establish loss causation to invoke the fraud-on-the-market presumption even though reliance and loss causation are separate and distinct elements of security fraud actions and even though proof of loss causation is common to all class members.

The case is important for any number of reasons. Among them, if the Fifth Circuit rule is upheld, it could make class certification much, much more difficult for plaintiffs. Second, the case will involve revisiting Basic and the fraud-on-the-market presumption. Here the Court could make a limited review of Basic and make a narrow decision in this case, or it could be much more aggressive and go out of its way to consider more deeply one of the most important cases in securities litigation in the last three decades. Finally, the case involves class certification in a term when the 800 pound gorilla class action case of Wal-Mart v. Dukes has already been argued before the Court but not decided.

We are delighted that a number of guests will be joining some of us regular bloggers in previewing the case and perhaps even reading the tea leaves or oral argument. As only fitting with a securities case, we should disclose that I, together with some of our guests and other law professors, wrote a brief for petitioner in the case. You can download all the briefs in the case here (scroll down to “Erica P. John Fund...”).

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Our sincere thanks to Willaim Birdthistle for an enlightening series of guest posts this week on his experiences growing up as an ex pat child in Libya.  Here is the collection of his posts:

Getting Out of Libya

Brega on the Border

Oil & Powder

From Ireland to Libya

You can view William's scholarship on the regulation of investment funds here.

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We are fortunate to have our frequent guest, William Birdthistle, return for a series of guest posts this week.  Many know him for his expertise in the regulation of mutual funds and other investment funds.  But fewer know that Professor Birdthistle grew up in Marsa el-Brega, Libya, site of heavy fighting in recent weeks in the Libyan civil war.  We are looking forward to hearing his thoughts this week on watching the land of his childhood become engulfed in war. 

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It's that time of year again.  Cherry blossoms are blooming, dogwoods are leafing out, and the US News & World Report rankings are out.  There's also been quite a lot of rumbling over ABA accreditation standards for US Law schools.  While possible changes in tenure policy has gotten the lion's share of the attention, Paul Caron reproduces a letter from Dean Donald J. Polden (Santa Clara), Chair of the Standards Review Committee, which focuses attention on

b.  A new rule that would provide for the public disclosure of accreditation findings for individual law schools;

c.  Relaxing the current standard that requires that schools must require every applicant to have a score on a valid and reliable entrance examination (practically speaking, the LSAT);

d.  Removing the current requirements that prescribe particular types of contracts (in terms of duration, participation rights, etc.) that must be given to faculty members who don't have tenure, while strengthening law schools' obligations to protect the academic freedom of all full time faculty members.  A related edit would relax the current requirement that the university or governing body must provide the dean with tenure as a member of his or her faculty;

e.  Reconsidering current standards that require schools to have class attendance policies, limit students from taking a internship at which they would be paid, and substantially limit credit hours that can be earned by students through distance education courses;

Our Masters will reflect on these topics next week in a forum.  Happy spring!

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from Chair Elizabeth Nowicki:

The AALS Annual Meeting in San Francisco is fast approaching, and the AALS Section on Securities Regulation will be having two events on Saturday, January 8, 2011, in celebration of the Section's 10th Anniversary.  Participation is invited, as described below:

 1.         Luncheon:  On Saturday, Jan. 8, at 12:15, the Section on Securities Regulation will be hosting a Luncheon at which corporate and securities law guru Joel Seligman (currently President of the University of Rochester) will be presenting the keynote remarks.  The Luncheon is open to everyone (although advance registration is required as per the Annual Meeting brochure), and all are welcome!

2.         Networking and Biographical Information Sharing:  At the Luncheon, we will be handing out a list of all Luncheon attendees (who want to be included on the list), with brief biographical blurbs about each attendee.  Our hope is to facilitate networking at the Luncheon and allow academics with similar interests to identify each other.  If you will be attending the Luncheon, and you would like to have your biographical blurb included in the hand-out, please e-mail a biographical blurb for inclusion (no longer than 100 words) to SecuritiesSection@gmail.com by December 31, 2010.  In addition to including your name, affiliation, and e-mail address in your blurb, consider also including a short statement of anything relevant or interesting in your background, the courses you teach and your specific areas of research interest, the title of a recent work or a work-in-progress, any blog or website with which you are affiliated, and whether you would like to find someone willing to comment on a draft of yours or whether you are willing to comment on someone else’s draft.

3.         Paper Presentation on Panel:  On Saturday, January 8, 2011, from 10:30 a.m. – 12:15, the Section on Securities Regulation will be hosting an engaging panel titled “Current Issues in Securities and Corporate Law: Fraud, Gatekeeping, the Economic Crisis, Reforming Reform, and ‘Where Were the Lawyers?’.”  The panel will include corporate and securities law experts such as Stanford Law School Professor Joe Grundfest and Northwestern Professor Bernie Black.  The panel will also include at least one paper presentation, so, if you have a current paper (either in draft form, accepted for publication, or published within the last year) that you would like to present on the panel on January 8, 2011, please submit the paper for consideration to SecuritiesSection@gmail.com by December 25, 2010.  (This call is going out on short notice due to some unexpected planning issues, and we sincerely apologize for such.)

On behalf of the Section on Securities Regulation, I hope to see you at the Annual Meeting.
Best regards,
Elizabeth Nowicki, 2010 Chair, AALS Section on Securities Regulation

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We at the Conglomerate are happy to welcome Jeff Schwartz as a guest blogger for the next two weeks.  Jeff is an Assistant Professor of Law at California Western School of Law in San Diego, where he teaches a variety of business law courses, including Contracts, Business Organizations, and Entertainment Law.  He writes in the areas of corporate and securities law, and we are looking forward to hearing about his current research.

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Last year we introduced a new feature at this blog called the Masters Forum, in which we invited a regular roster of law professors to comment on breaking issues such as the Jones v. Harris case in the Supreme Court and the passage of the Dodd-Frank Act, as well as on important issues in legal education after the financial crisis.

This year we will continue the program and follow last year's impressive roster of professors with a new group of experts.  Here is our roster for the 2010-11 academic year: Jayne W. Barnard (William & Mary); Chris Brummer (Georgetown); Deborah A. Demott (Duke); David A. Hoffman (Temple); Thomas W. Joo (University of California – Davis); Sarah B. Lawsky (University of California – Irvine); Leandra Lederman (Indiana – Bloomington); Adam J. Levitin (Georgetown); Eric Talley (University of California – Berkeley).  You can take a look at the profiles of this impressive line-up here.

Come back at the end of this week as our new Masters offer advice on what the new Congress and the President should look to accomplish in the business law arena in the next two years.

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Here.

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"Top blog" contests always make me a bit queasy, but things are a little slow on Labor Day, so I will alert you to the LexisNexis quest for the Top 25 business law blogs. The Glom is one of the initial top 25 based on their review of the blogs and comments from Community members. If you feel inspired to nominate the Glom, we offer our undying appreciation.

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