Emory University School of Law’s Center for Transactional Law and Practice has announced its second biennial conference on the teaching of transactional law and skills, Transactional Education:  What’s Next?    I attended Emory's first transactional conference in 2008 and very much enjoyed it. 

From the steering committee:

The Steering Committee
    Tina L. Stark, Chair, Emory University School of Law
    Danny Bogart, Chapman University School of Law
    Deborah Burand, University of Michigan Law School
    Joan MacLeod Heminway, The University of Tennessee College of Law
    Jeffrey Lipshaw, Suffolk University Law School
    Jane Scott, St. John’s University School of Law

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I pride myself on paying off the credit card at the end of every month. 

OK, OK, fine, I slipped on 2 separate occasions.  But come on, it was grad school--like I had any money!  Despite my (almost) unimpeachable fiscal virtue, credit card companies still make money on me, by means of "interchange fees."  That is, the merchant that accepts my credit card has to give a few crumbs, generally 1-4% of the charged amount, to the bank that issued the card.  Merchants grumble about having to pay the banks a cut, and some (like my local wine stores) give discounts to cash/check users.  Some argue that rising fees are hurting consumers.

Enter the regulators.  Maybe.  Our friends at Truth on the Market have a great symposium lined up that will explore the regulation of interchange and credit card markets.  I'll be tuning in next Tuesday and Wednesday. It's outside my research area, but I'm interested in hearing what these smart people have to tell me about my credit cards.

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I’m pretty sure that Vince Vaughn and Jon Favreau didn’t have in mind hitting the Strip with the ABA’s Business Bankruptcy Committee/National Conference of Bankruptcy Judges, but that’s what brings me to Sin City for the first time.

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I'm hitting the road tomorrow to attend a Business Law and Narrative Symposium hosted by the Michigan State University College of Law and its Law Review.  Mae Kuykendall has assembled an impressive lineup of scholars, including our own Christine and Glom Masters Joan Heminway, Don Langevoort, and Larry Ribstein.   

For an English major turned corporate scholar, this agenda is a little slice of heaven.

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Just a reminder about the Business Associations Call for Papers, which has a deadline of August 14th.  The session willexplore the financial crisis and recovery effort by examining its impact on corporate governance.  Below is the call, and submissions can be sent to me here.  Hope to see you in New Orleans.       

                The AALS Section on Business Associations will meet during the AALS Annual Meeting in New Orleans, from 9:00am-noon on Sunday, January 10, 2010.

                The topic for this year’s session is “The Financial Collapse and Recovery Effort: What Does it Mean For Corporate Governance?”  During the first half of the session, there will be a roundtable discussion and debate among prominent law school faculty and other commentators on legal and financial issues.  During the second half of the session, legal scholars will present papers related to the topic. 

Papers will be selected based on submissions made in response to this Call for Papers.  Possible topics include the role of the federal government, the role of the board, executive compensation and decision-making, financial innovation and complexity, legal issues related to behavioral economics and finance, shareholder and stakeholder rights, and the theory of the firm.  The Executive Committee encourages submissions on a broad range of issues related to this year’s topic, including empirical and theoretical perspectives. 

                If you are interested in presenting a paper, please submit a summary of no more than three double-spaced pages, preferably by e-mail, before Friday, August 14, 2009.  In addition to the summary, you also may submit a complete draft of your paper. 

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The UMKC Law Review, published by the University of Missouri-Kansas City School of Law, is calling for papers by legal scholars addressing the potential for law and legal education to promote entrepreneurship and innovation and facilitate economic recovery and growth. Articles and essays accepted for publication will appear in the Fall 2009 Law, Entrepreneurship & Economic Recovery issue of the Law Review.

Suitable topics for this symposium issue would include critical analysis of the role of laws generally, or of particular laws, in either supporting or inhibiting the opportunity identification, creativity and business models that fuel successful entrepreneurial ventures; proposals for legal reforms to foster the generation of new ideas and inventions and to provide viable paths and regulatory climates for the commercialization of innovations; and ways in which law schools can improve the education of law students to better position them to become lawyers who are effective and valuable contributors to the success of entrepreneurial endeavors.

Submissions should be made by August 1, 2009. We welcome both articles (under 25,000 words) and essays (10,000-15,000 words). Professor Anthony Luppino is the coordinator of the Symposium, and you may contact him at UMKC School of Law, 500 E. 52nd St., Kansas City, Missouri 64110 (e-mail: luppinoa@umkc.edu) if you are interested in writing a topical article or essay.

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If you're attending the Mid-Year Meeting in Long Beach, or just happen to be in SoCal and hankering to hang with some BA/Transactional Law/Work Law types, please join us next Wednesday June 10th at 8:15 for a drink at Mai Tai Bar, 97 Aquarium Way.  If all goes well I'll be speaking on a panel on Intergrating Tranactionactional Law in Traditional Courses that afternoon, and relaxing with an Aloha-Tini that evening.  Hope to see you there.

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Starting Monday, Truth on the Market will be hosting a blog symposium on Michael Carrier's new book, Innovation for the 21st Century.  Discussants include, on March 30 (the antitrust day), Dan Crane (Chicago/Cardozo), Geoff Manne (TOTM/LECG), Phil Weiser (Colorado), and Josh Wright (Texas/GMU), and on March 31st (the IP day), Dennis Crouch (Patently-O/Missouri), Brett Frischmann (Cornell/Loyola), and F. Scott Kieff (Wash U./incoming GW). 

I taught a seminar on innovation policy a couple of years ago, and learned enough to know that synthesizing IP and Antitrust in the innovation context is a difficult conceptual challenge.  This should be fascinating.

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I've recently posted the paper I'll be presenting at Vic's NIE conference.  The rather bulky title is Leverage in the Board Room:  The Unsung Influence of Private Lenders in Corporate Governance.  The link is here, and the abstract is below.  Comments welcome!

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Here is a revised program for the New Institutional Economics conference that Phil Weiser and I are hosting in Boulder on June 4-5.  Let me know if you are interested in attending.  (More info also available on the Silicon Flatirons website.).

Workshop Faculty 

• Lee Fennell (Chicago)
• Victor Fleischer (Colorado)
• Mark Ramseyer (Harvard)
• Henry Smith (Harvard)
• Eric Talley (Berkeley)
• Phil Weiser (Colorado)

Participant Papers

• Mitu Gulati (Duke)
• Kim Krawiec (North Carolina)
• Michael Madison (Pittsburgh)
• Fred Tung (Emory)
• Molly Van Houweling (Berkeley)
• Josh Wright (George Mason)

More details below.

Thursday, June 4

New Institutional Economics and Property Rights

9:30-10:30       Henry Smith

• Presentation of Harold Demsetz, Toward a Theory of Property Rights 57 American Economic Review 347-59 (1967)
• Lee Fennell, Discussant

10:30-11:15     Molly Van Houweling

• Presentation of  Molly Van Houweling, Author Autonomy and Atomism in Copyright Law (work in progress)
• Henry Smith, Discussant

11:15-11:30     Break
11:30-12:15     Michael Madison

• Presentation of Michael Madison, Brett Frischmann & Katherine Strandburg, The University as Constructed Cultural Commons (work in progress)
• Lee Fennell, Discussant

12:15–1:30      Lunch [in the law school]

New Institutional Economics and Contract Design

1:30 – 2:15      Mark Ramseyer                      

• Presentation of Benjamin Klein, Robert G. Crawford & Armen A. Alchian, Vertical Integration, Appropriable Rents, and the Competitive Contracting Process, 21 J. L. Econ. 297 (1978).

2:15 – 3:00      Josh Wright

• Presentation of Benjamin Klein & Joshua Wright, The Economics of Slotting Contracts, 50 J. L. Econ. 421 (2007).
• Phil Weiser, Discussant

3:00 – 3:15      Break

Using NIE in the Classroom

3:15 – 4:15      Victor Fleischer

• Presentation of Michael Lewis, The End, Portfolio (Dec. 2008)
• Application of NIE to the Lewis article
• The “Deals” Template
• Eric Talley, Discussant

4:15 -   5:15     Discussion of NIE and the Financial Crisis

• Eric Talley
• Victor Fleischer
• Phil Weiser
• Mark Ramseyer

7:30 pm           Conference Dinner

Friday, June 5

New Institutional Economics and Behavioral Finance

9:00 – 9:45      Fred Tung

• Presentation of Fred Tung, Leverage in the Board Room: The Unsung Influence of Private Lenders in Corporate Governance (work in progress)
• Eric Talley, Discussant

9:45 – 10:30    Mitu Gulati

• Presentation of Mitu Gulati & Robert Scott, Sticky Contracts (work in progress)
• Victor Fleischer, Discussant

10:30 – 10:45  Break

10:45 – 11:30  Kim Krawiec

• Presentation of Kim Krawiec, The Return of the Rogue, Az. L. Rev. (forthcoming 2009)
• Eric Talley, Discussant

11:30 – 12:00 Wrap-up and Feedback (Vic and Phil)

End of Program

12:30 – 1:30 pm          Informal Lunch (optional)
Friday afternoon – Cycling or Hiking (optional)

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I know that our readers range far and wide across the globe, but for those readers plugging away in some sort of full-time, untenured capacity at Big 10 law schools, I hope you received an email invitation yesterday to the Fourth Annual Big 10 Aspiring Scholars Conference to be held August 2-4, 2009 at the University of Illinois College of Law.  This conference has been hosted in previous years by our friends down the highway, Indiana University -- Bloomington, but for this summer only, we're all meeting at Chambana!  Here is the announcement:

Plan to join your fellow Big Ten Conference colleagues…

Fourth Annual Big Ten Aspiring Scholars Conference

August 2-4, 2009

University of Illinois College of Law

Champaign, Illinois

The University of Illinois College of Law invites all junior scholars at Big Ten Conference law schools to share scholarly ideas and discuss issues facing pre-tenured scholars. The two-day conference features works-in-progress breakout sessions and interaction with multiple panels of experts, including recently-tenured professors, promotion and tenure committee chairs, and appointment committee chairs.

Featured speaker

Professor Brian Leiter

John P. Wilson Professor of Law

Director of the Center for Law, Philosophy, and Human Values

University of Chicago

Author of “Brian Leiter’s Law School Reports”

Who is invited? All tenure-track law professors are invited to attend. In addition, visiting assistant professors, fellows, and scholars preparing to enter the tenure-track teaching market are also welcome and will enjoy panels devoted to their interests and concerns.

Your hosts are Associate Dean Lawrence Solum, the John E. Cribbet Professor, and Professor Christine Hurt of the University of Illinois College of Law. Hotel rooms will be provided for participants at the nearby Hilton Garden Inn. Participants will be responsible for transportation to and from the conference.

For more information or to RSVP, contact Professor Christine Hurt at achurt@illinois.edu

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On Friday October 3, Maryland will be hosting a conference on the Subprime Meltdown: Causes, Consequences and Solutions.  As you can imagine, we appear to have an ever-widening array of issues that can be discussed including the housing crisis, the Congressional bailouts, the failure of investment firms, and the role of complex securities instruments.  Our very own Christine Hurt will be presenting along with a host of other academics and experts including the chief economist of the U.S. House Committee on Financial Services, a former director of the SEC's Division of Corporation Finance, a member of the New York Times editorial board whose been following these issues, associate general counsel of AFL/CIO, counsel, Division of Consumer and Comunity Affairs, Federal Reserve Board, and a former general counsel of Fannie Mae.

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On May 30 and 31, 2008, Emory’s Center for Transactional Law and Practice hosted a conference on the teaching of drafting and transactional skills. If attendance is a measure of success, we were a hit. We had about 170 registrants from more than 90 law schools. We also had registrants from law firms and Germany. Topics ranged from how to incorporate transactional skills into first-year doctrinal courses, to the grading of a drafting exercise, to the creation of a full-semester, simulation capstone course.

One of our goals was to get as many people as possible who teach transactional skills all in the same room at the same time. And we did that. But that was also the conference’s failing: We were preaching to the converted. Most who attended needed no encouragement to teach a transactional skills course or add a transactional skills component to a doctrinal course. But the professors we really needed to reach were not there. My guess is that the AALS June 2009 conferences on transactional law and business associations will reach a broader audience. That’s only for the good, as it will certainly increase attendance at Emory’s 2009 conference.

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The Canadian Law and Economics Association 2008 annual meeting will be September 26-27 in Toronto (as always).  The submission deadline for abstracts/papers has been extended to June 28th (submission through SSRN).

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Last Friday and Saturday I attended the Teaching Consumer Law Conference hosted by the University of Houston Law Center. There were a number of terrific presentations, but Christopher Peterson’s presentation on Mortgage Electronic Registration System, Inc. (MERS) really caught my attention.

MERS is a privately held company that “registers” mortgages. Ordinarily, the mortgagee (lender) must record its interest in the mortgage in the county land records. Any subsequent transfers of the mortgagee’s interest (for example, in the securitization process) must also be recorded. MERS short circuits this multiple recording process. Instead, the lender includes language in the Deed of Trust or Mortgage describing MERS as “a separate corporation that is acting solely as a nominee for Lender and Lender’s successors and assigns. MERS is the mortgagee under this Security Instrument.” MERS is recorded as the mortgagee in the county land records. Although MERS does not lend money, service the mortgage, or receive any of the payment stream from the mortgage, it remains as “nominee” through all future transfers. As a result, any subsequent transfers of interest in the mortgage are recorded only in MERS electronic system -- not in the county land records. According to MERS, it “now registers more than half the mortgage loans originated in the United States.”

Increasingly, foreclosure actions are being brought in MERS name. Professor Peterson questions whether MERS as “nominee” has standing to bring foreclosure actions. A few courts have agreed with him, but other courts conclude MERS has standing. (See here for a summary.) Professor Peterson believes that the MERS system may have other legal deficiencies. He questions whether subsequent transfers of the mortgagee interests are properly perfected if they are only recorded in the MERS system and not the county records. He also believes it may be appropriate to treat MERS as a debt collector under the Fair Debt Collection Act. I look forward to reading Professor Peterson’s completed article.

While I have not fully analyzed the legal implications of MERS’s business plan, it seems to me that MERS's innovation of electronically tracking mortgage interests was only a matter of time. It is cumbersome and costly to file and search in the paper land records in each county. States have already consolidated and digitized records for security interests in personal property. Of course, the personal property recording systems are still state government systems. In contrast, MERS is a nation-wide private company owned partly by some mortgage lenders. MERS will end up with a lot of bad publicity if a very large number of foreclosure actions are brought in its name, particularly if it appears that the MERS system was used to hide the ball from consumers.

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