September 07, 2014
Position Annoucement: Washington & Lee Business School
Posted by David Zaring

The school that go me my start in teaching is advertising for someone to join the BA level B school in business law.  Because I think this announcement revises one published earlier, I'll leave it after the jump, for those interested.

The Department of Business Administration in the Williams School of Commerce, Economics & Politics at Washington and Lee University invites applications to fill a full-time tenure-track or clinical appointment in Business Law beginning in August 2015.  The successful candidate will be hired at the Assistant Professor/Clinical Assistant Professor or Associate Professor/Clinical Associate Professor rank.  Candidates applying at the Assistant Professor/Clinical Assistant Professor level should have at least three years of successful teaching experience at an AACSB accredited institution.

This position is a tenure-track or clinical appointment that requires a strong commitment to excellence in teaching in an undergraduate liberal arts environment.  A qualified candidate for the tenure track appointment must demonstrate the capacity to conduct ongoing scholarly research that is consistent with the rank sought.  A qualified clinical candidate must demonstrate the ability to remain engaged appropriate professional activities.  The position requires appropriate service contributions to the W&L community including advising undergraduate business administration majors.

The successful applicant will teach Business Law (a core course in the business administration major) as well as electives.  W&L provides faculty the opportunity to develop appropriate courses that are of interest to the faculty member and for which there may be student demand.  In particular we are interested in the areas of negotiations, entrepreneurship, international law, or corporate governance.

Candidates must have a J.D. degree from an ABA accredited law school.  Candidates with a second degree in a business-related field, a record of publishing in the field of business law, business or professional experience, and/or teaching experience in higher education in the field of business law are particularly encouraged to apply. 

Applicants should send a letter of interest, curriculum vita, and teaching evaluations to: businessLaw@wlu.edu.  Review of applications will begin immediately and continue until the position is filled.  All application materials must be submitted by is October  15, 2014.  Please state in your cover letter if you will be attending the Southeastern Academy of Legal Studies in Business conference. 

If you have questions about the position, please contact Bob Ballenger, Head, Business Administration Department, ballengerb@wlu.edu.

Washington and Lee is a highly selective, private, liberal arts university with 1800 undergraduates, located in the Shenandoah Valley in Lexington, Virginia. One of the nation’s finest liberal arts colleges, W&L is unique in having accredited pre-professional undergraduate programs in business administration, journalism, and accounting, plus a graduate School of Law. Established in 1749, it is the ninth oldest institution of higher learning in the nation. To learn more, please visit www.wlu.edu.

Washington and Lee University is an Equal Opportunity/Affirmative Action Employer.   

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July 29, 2014
Position Announcements: Law In Business Schools in Indiana, Texas, Pennsylvania, Massachusetts, California, & Ohio
Posted by David Zaring

The announcements are after the jump; one of them you may have seen already, but all of them require applications outside of the AALS FAR process, and are, in my view, well worth your consideration.

KELLEY SCHOOL OF BUSINESS, INDIANA UNIVERSITY

Department of Business Law and Ethics

The Kelley School of Business at Indiana University seeks applications for open-rank, tenure-track positions in the Department of Business Law and Ethics, effective August 2015. The candidates selected will join a well-established department of 16 full-time faculty members who teach a variety of courses on legal topics and business ethics at both the undergraduate and graduate levels.

To be qualified, a candidate must have a J.D. degree with an excellent academic record and must demonstrate the potential for outstanding teaching and research in law and/or ethics.

Interested candidates should review the application requirements and submit their application at http://indiana.peopleadmin.com/postings/920. Candidates should direct any questions to Jamie Darin Prenkert, Chair, Department of Business Law and Ethics, Kelley School of Business, 1309 E 10th Street, Bloomington, IN 47405 or japrenke@indiana.edu.   

Application materials received by October 15, 2014, will be given full consideration.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services.  All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation or identity, national origin, disability status or protected veteran status.

Non-Tenure-Track Position(s)

KELLEY SCHOOL OF BUSINESS, INDIANA UNIVERSITY

Department of Business Law and Ethics

The Kelley School of Business at Indiana University seeks applications for full time, non-tenure-track lecturer or clinical faculty positions in the Department of Business Law and Ethics, effective August 2015. The candidates selected will join a well-established department of 16 full-time faculty members who teach a variety of courses on legal topics and business ethics at both the undergraduate and graduate levels.

To be qualified, a lecturer candidate must have a J.D. degree with an excellent academic record and must demonstrate the potential to be an outstanding teacher in business law and/or ethics courses. Ideal candidates for clinical faculty positions will meet all of the requirements of a lecturer candidate and will have had career experience in law or ethics and compliance that is significant in duration and that indicates the attainment of a substantial level of responsibility and leadership.

Interested candidates should review the application requirements and submit their application at http://indiana.peopleadmin.com/postings/921. Candidates should direct any questions to Jamie Darin Prenkert, Chair, Department of Business Law and Ethics, Kelley School of Business, 1309 E 10th Street, Bloomington, IN 47405 or japrenke@indiana.edu.   

Application materials received by November 15, 2014, will be given full consideration.

Indiana University is an equal employment and affirmative action employer and a provider of ADA services.  All qualified applicants will receive consideration for employment without regard to age, ethnicity, color, race, religion, sex, sexual orientation or identity, national origin, disability status or protected veteran status.

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The Wharton School at the University of Pennsylvania invites applications for tenured and tenure-track positions in its Department of Legal Studies and Business Ethics.  The Department has eighteen full-time faculty who teach a wide variety of business-oriented courses in law and ethics in the undergraduate, MBA, and Ph.D. programs and whose research is regularly published in leading journals.  The Wharton School has one of the largest and best-published business school faculties in the world.  In addition, the school has a global reach and perspective, as well as an interdisciplinary approach to business issues (embracing ten academic departments and over twenty research centers). 

Applicants must have either a Ph.D., J.D., or both, from an accredited institution (an expected completion date no later than July 1, 2016 is acceptable) and a demonstrated commitment to scholarship in business ethics, business law, or a combination of the two fields.  Specific areas of potential focus for hiring include corporate governance, normative ethics related to business, social impact/sustainability, securities regulation, and health law/bioethics.  The appointment is expected to begin July 1, 2015.

Please submit electronically your letter of introduction, c.v., and one selected article or writing sample in PDF format via the following website by November 1, 2014: APPLY.  Some decisions for interviews will be made before the deadline, so candidates are encouraged to apply early.

The University of Pennsylvania is an equal opportunity employer.  Minorities, women, individuals with disabilities, protected veterans are encouraged to apply.

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Subject: Position opening: Business Law/Real Estate, California State University Northridge

California State University, Northridge (in the L.A. area) has an opening for a tenure track faculty member to support our expanding real estate program.  Here's a link to the application: http://www.csun.edu/sites/default/files/AA1%20BLAW%20AY15-16%28Revised%29.pdf Both Stuart Pardau and Melanie Williams will be at the Annual Conference and would be happy to talk about the position and our programs. 

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The Accounting Department of the Lindner College of Business at the University of Cincinnati invites applicants for up to two full-time Professor of Business Law, Educator track positions (nontenured, but union), with an August 2015 start date. UC has a large accounting program, with 700 undergraduate majors, a Master of Science in Accounting, a Master of Science in Taxation, and a doctoral program. Business Law is part of the Accounting Department, and offers required and elective business law courses at both the undergraduate and graduate levels (including MS Accounting). The Lindner College of Business is nationally ranked in the top 100 business schools, and the MBA program was recently ranked #60 nationally by US News and World Report.

Primary responsibilities involve teaching and related service activities. High quality teaching is expected; teaching load and rank will be determined commensurate with teaching credentials, prior professional law experience, and prior research productivity. Sustained academic and professional engagement is required, and publishing in quality business law related journal is desirable.  

 Candidates must have a JD from an accredited institution approved by the US American Bar Association (ABA) and be licensed to practice law in a US jurisdiction.  

 Preferred qualifications include: an undergraduate or graduate degree in accounting or business; professional law or tax work experience; experience teaching undergraduate and graduate business law courses at a US AACSB accredited institution, with evidence of effective classroom outcomes; the ability to interact effectively and professionally with other faculty and the business community; a passion for teaching and mentoring students; the ability to build quality academic programs; and research skills and recent journal publications. Candidates must possess both written and spoken English fluency, and provide evidence of such throughout the interview process.  

 Representatives will be available at the Academy of Legal Studies in Business (ALSB) meeting in Seattle in August.  If interested in meeting with a UC representative in Seattle, please contact Ilse Hawkins at hawkinis@ucmail.uc.edu

 For additional information about the university please go to www.uc.edu.  To apply for position (214UC8724), please see www.jobsatuc.com.  For questions, please contact Ilse Hawkins at hawkinis@ucmail.uc.edu  or the Department Head, Dr. Robert Larson at Robert.Larson@uc.edu.

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The Department of Ethics & Business Law in the Opus College of Business at the University of St. Thomas has an opening for a one-year position as a Visiting Distinguished Service Faculty in Business Law, for the 2014-15 academic year.  This position will involve teaching three courses (including International Business Law) each semester.  To apply (and for more information about this position), visit this site: https://facultyemployment-stthomas.icims.com/jobs/1252/visiting-distinguished-service-faculty-in-business-law/job, and submit an online application (two letters of recommendation to be sent separately).  Additional questions can be directed to the search committee chair, Dale Thompson (dbthompson@stthomas.edu).

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The College of Business Administration (COBA) at Texas A&M University--Central Texas (A&M-Central Texas) is currently looking for new faculty members in our Management and Marketing Department with a particular need for someone able to teach employment law, labor relations, and legal environment of business courses (all three in an academic year) beginning in the fall of 2015.

A&M-Central Texas was established in 2009 as an upper-level undergraduate and graduate institution within the Texas A&M University System.  Although we are young and developing, the state, the region, the U.S. Army, the Texas A&M System, and a Silicon Valley investment group are all making considerable investments in our success.  In 2010, the U.S. Army donated 600+ acres of land for our campus, and our second building on the new campus just opened this summer, with others to follow, including a building to house COBA.

A&M-Central Texas is accredited by the Southern Association of Colleges & Schools Commission on Colleges and COBA is currently ACSBP accredited. We are excited to announce that in March we formally began an exciting journey towards AACSB accreditation by becoming a member institution and have continued to work diligently on that goal over the last several months.

We are located in Killeen, TX, a city of about 120,000 (not including the 50,000+ on Fort Hood, which is the largest Army installation in the world).  Killeen is about an hour north of Austin, and just a few miles west of the I-35 corridor, which is one of the fastest trans-metropolitan regions in North America.  Killeen is part of an MSA of over 400 thousand, which grew an astonishing 30% between 2000 and 2010, and has been virtually recession-proof.  New investment and construction has continued unabated at a breakneck pace since 2009, and the State of Texas currently operates with a large budget surplus.  A&M-Central Texas also has the most diverse student body in Texas, and Killeen is one of the most ethnically diverse cities in the state (owing a lot to Fort Hood).  

Furthermore, the cost of living can't be beat: the median home value in this ZIP code is around $125,000, and the cost-of-living index is only 87 (100 is average).

Our student body is non-traditional, with an average age of about 33 years, but that has been trending downward.  We have a lot of active duty and veteran military personnel, but a growing proportion of civilians.  Most of our classes are offered in the afternoon and evening, but we are moving toward more traditional morning/day classes.  In addition, because of our strong ties to serving military personnel around the world, we also offer many courses online (40%).  This is an important element of our university mission, and is not driven solely by cost considerations.  

We have excellent online course technology, technical support, and a course development support staff to help those with little or no online teaching experience get up to speed.  Depending on preferences, most full-time faculty teach anywhere from 25%-50% of their courses online. 

Faculty members would first and foremost be expected to provide excellent instruction, but a significant part of faculty evaluation includes university and professional service and scholarship.  The research and publication expectations here are modest and commensurate with our teaching mission.  There is ample flexibility and funding support to engage in scholarly activities, and many of our faculty members do it very well.  Our current faculty members have published in noteworthy journals and have served on several major editorial boards.  We are looking for people who can and want to do research, but who are equally concerned with quality teaching and having an impact on students and in the community.  Our primary concern is that you care deeply about what you write about and are bringing that excitement and knowledge into the classroom.  

Teaching at a young, growing institution is a lot of work, but it's also a unique opportunity to have the flexibility to do scholarship and service that "counts" in many different ways, and to be able to put your fingerprint on an institution that is changing lives daily, and hopefully for many years to come.  

Successful candidates must be able to demonstrate the capability to teach at a high level in both face to face and online course formats, which assumes strong technological skills and hopefully experience using learning management systems like Blackboard. This will be a tenure track appointment at the rank of either Assistant or Associate Professor and pay commensurate with one’s experience and the norms of similarly situated institutions.

Lucas Loafman who is the Chair of the A&M-Central Texas Management & Marketing Department, and a longtime ALSB member, will be in Seattle Tuesday, Wednesday, and Thursday to speak with interested applicants. 

If you have any questions or are interested in discussing this with him in Seattle, he may be reached at loafman@tamuct.edu.

To apply visit the TAMUCT jobs site (posting to appear soon): https://www.tamuctjobs.com/applicants/jsp/shared/Welcome_css.jsp

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Babson College has an opening for a tenure track Assistant or Associate Professor of Business Law.  Would you please notify the list serve?  Carolyn Hotchkiss and I will be attending the Seattle Conference and can informally chat to anyone interested about life at Babson College.  Formal interviews will take place this Fall. 

Here is the link:  https://babson.peopleadmin.com/postings/3009

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July 11, 2014
Should Agencies Enforce?
Posted by Max Minzner

I wanted to finish up my discussion of administrative enforcement by considering alternatives.  We often take regulatory enforcement for granted.  A securities regulator, for example, naturally will have the power to seek out violations of the securities laws and sanction violations.  As is common in administrative law, scholars, courts, and Congress start with the assumption that expertise in the industry is the most important input into the enforcement calculus.  If an agency is familiar with an industry, it will make good enforcement choices.

In my forthcoming article in the Minnesota Law Review, I argue that this question is actually much more complex than we usually assume.  In particular, prosecutorial discretion has strong generalist aspects that largely do not depend on the regulatory subject matter.  Giving enforcement authority to a specialist agency instead of a generalist enforcer (such as the Department of Justice) trades one type of expertise for another.  Furthermore, specialists inherently see enforcement actions more narrowly.  As a result, we shouldn’t see enforcement by regulatory agencies as inevitable or automatic.  

Since it is still in draft form, I’d very much appreciate any and all comments.  Thanks again to Erik for the chance to blog this week.

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The Trouble with VAPs
Posted by Usha Rodrigues

I have a problem with VAPs--the visiting assistant professorships/fellowships that are the most common entry-point to the legal academy.  What I am looking for in a new colleague is curiosity, discipline, and the capacity for intellectual give-and-take--not just play king-of-the-hill and defend a position against all comers, but engage in a real dialogue.  One of my colleagues call it "sparkiness."

So how do you find that?  

Pre-VAP, writing an article while in practice was a strong signal--if you were interested, cared enough, and were hard enough working to write while in practice, you were a pretty good bet.  With VAPs now de rigeur,  the signal is muddied.  Each law school that houses VAPs has strong institutional incentives to place all of them, so it's hard to use VAP recommenders as a signal--the law school will find someone to enthuse about each of its VAPs. And VAPs are now well-groomed to say the right things, coached as to the standard arguments and responses.  They talk the talk.  But will they walk the walk 3 years into teaching?  It's hard for me to tell.

There are recommenders and recommenders, of course.  Each institution will have those discerning types who don't lard on the praise--whose compliments, even if sparing, mean more than the lavish encomiums of their colleagues.  But how to find these?  

As I commented on Elizabeth Pollman's great closing post,

last year I was talking to a distinguished older professor about hiring. He said he had stopped caring about how smart someone was, since everybody at this level is smart. "I don't care how smart the candidate is. Show me why they've done." I've thought about that conversation a lot since then. What makes a successful law professor or law student seems to have as much to do with drive/work ethic as smartness. The latter may be necessary, but is not sufficient. 

It's just harder to discern "what someone has done" when their job as a VAP is basically to produce scholarship and have it be vetted and polished.  Of course I'm just throwing stones--I don't have any ideas about how to make these discernments in the post-VAP age.  Maybe someone else does?

 

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July 08, 2014
For-Profit Public Enforcement
Posted by Max Minzner

I blogged yesterday about administrative enforcement, an area that lies at the intersection of criminal and administrative law.  Among other topics, my scholarship has considered the civil penalty process.  In particular, what are the inputs and incentives that shape administrative agency penalties?  

A standard model used to describe the penalty process emphasizes economic theories of deterrence.  Financial penalties are a mechanism to raise the price for violations either to make misconduct completely unprofitable or, in the alternative, to force violators to internalize the costs of violations.  I’ve pointed out one way that this theory may break down – administrative agencies might not focus on deterrence at all.  Instead, their penalties may be crafted to achieve retributive ends. 

In our recent Harvard Law Review article, For-Profit Public Enforcement, Margaret H. Lemos and I looked at penalties from another perspective: public enforcers may have self-interested reasons to maximize civil penalty recoveries.  These incentives are widely recognized in private enforcement.  Class action lawyers, for example, operating on a contingency fee basis have straightforward reasons to maximize recoveries.

Perhaps less obviously, public enforcement lawyers can have comparable incentives to impose large penalties.  These incentives work most clearly in cases where enforcement agencies keep a portion of the civil penalties imposed.  This structure is common in the asset forfeiture process used in connection with many criminal cases and also exists in other state and federal enforcement contexts.   Even when penalties are turned over to the general treasury, enforcers may have reputational incentives to maximize penalties.  Both agencies as a whole and individuals working in enforcement agencies may seek to build a reputation as an aggressive enforcer for reasons other than deterrence.   

Assuming that these claims are right and that civil penalties can be driven by retributive or self-interested goals, is this a problem?  Perhaps, perhaps not.   Self-interested public enforcement may push enforcers to emphasize financial recoveries over other tools of regulatory control, such as injunctive relief.  However, if our default assumption is that administrative agencies underenforce and usually do not impose adequate penalties, the pressure of self-interest may correct this trend to some degree.  

The presence of retribution in civil penalties has similarly mixed effects.  Of course, if penalties are supposed to be carefully calculated to deter, retributive ends will hamper this goal.  On the other end, we now widely recognize the role of norms in shaping compliance behavior.  Retributive punishment done well can shape and reinforce industry norms.  

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July 07, 2014
Retribution and Administrative Law
Posted by Max Minzner

Erik, thank you for that introduction.  It is a pleasure to join the Conglomerate for a week.  My scholarly interests have recently focused on federal administrative enforcement – enforcement actions by agencies like the SEC, the CFTC, as well as a host of lower profile entities. This is a fascinating area of public law combining two scholarly literatures.  Administrative enforcement actions share much in common with criminal cases.  They are brought by public entities to vindicate public wrongs.  However, the administrative context deeply shapes this type of enforcement.  For example, unlike most prosecutor's offices, administrative enforcement bodies tend to be industry-specific.      

As a result, administrative enforcement can go wrong in two different ways– the “criminal law” way or the “administrative law” way.  Administrative agencies face the challenges of regulatory capture, inadequate or incorrect information, or simply the wrong incentives to engage in appropriate regulatory action.  Criminal enforcement, though, often struggles with procedural fairness as well as the difficult task of assigning the correct level of punishment to different forms of misconduct.

Take, for example, this last issue: the fundamental question of penalty levels. Administrative agencies commonly use financial penalties to punish regulatory violations.  How should these penalties be set?  Which cases require the largest penalties and which only need more modest sanctions? 

Criminal law scholars will recognize this question as an inquiry about theories of punishment.  Speaking broadly, criminal law considers a couple of approaches.  Utilitarian theories of punishment (e.g., deterrence, rehabilitation, incapacitation) seek to punish conduct to produce beneficial social outcomes.  Retributive theories emphasize desert – punishment occurs because the violator deserves punishment, not because it produces a social benefit. 

So what do federal agencies do?  As I argue here, administrative agencies almost uniformly talk about deterrence, but usually engage in retribution.  When setting penalty levels, agencies move penalties up or down in response to facts that justify retributive punishment but do not adjust penalties in the way deterrence requires.  For instance, building on Gary Becker’s justifiably famous work, Crime and Punishment: An Economic Approach, most deterrence theories emphasize the role of the probability of detection in setting penalty levels.  To deter appropriately, penalties need to increase when violations are harder to detect and punish.  In practice, though, administrative agencies place little weight on this issue.  Instead, agencies are deeply concerned with issues like mens rea, a topic far more central to retributive theories of punishment.

Is this retributive bent in administrative enforcement surprising?  Perhaps not.  A large literature suggests that most people are intuitively retributive when making punishment choices.  In social science experiments, study participants set penalties based on retributive concerns, but do not adjust punishment levels in ways that would be required to deter appropriately.  In this way, administrative agencies look like the rest of us.  We mostly care about desert even when we talk about deterrence.  

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June 20, 2014
The "Law and" Question
Posted by Usha Rodrigues

Steve Bainbridge is not afraid to stake a claim.  Yesterday he took aim  at both empirical legal scholarship and the law & PhD. folks.  How not to win friends and influence people at a law professor conference, indeed.

I'm not singing Steve's tune, but I will hum a few bars.  I've done some empirical work, and I see real value in its insistence on seeing what's actually out there--how things work in the real world.  Especially in the corporate and securities fields, we can count things and measure the effects of changes in the law.  To ignore that ability to measure and test law's impact seems foolhardy.

Still, we are law professors.  Law must come first.  I remember in my earliest days in the academy listening with disbelief to a fellow newbie law prof: "I just want to do empirical work, and law pays better than economics.  I don't care about the law at all."  He laughed.  I didn't.

There does seem to be a "race to economics" in ELS these days, to see whose works is most rigorous--meaning most like that of real economists.  I think "Law and"s --including economics PhDs, but also myriad other disciplines--can contribute to a law faculty, but their value is that  legal training enables them to pursue questions that would not occur to straight PhD's.  One of the projects I'm working on is a hybrid constitutional law, securities law, political science piece.  It may all come to naught, but it's an inquiry a political scientist wouldn't make,.  That's my comparative advantage as a lawyer.

In the comments to his post Steve laments that "the legal academy is not producing scholarship that is relevant to the bench and bar or that our graduates (especially at the T14 schools) are coming out of school better versed in theory than professional skills."  This is a problem.  Even than for the general law prof, for  "Law and"s I  think that practice is vital.

To put it bluntly, Harvard/Yale/Chicago/Columbia/Stanford can hire whoever they want, because they're in the business of pedigreeing elite students.  They can hire professors who haven't practiced law and who  write about theoretical topics.  It doesn't effect their students' job prospects.   All the other law schools have lemming-like followed their lead, accepting without question that the way up the USN&WR rankings is to look as much like possible as the T5.  That worked fine during boom times, but in this legal market, it  seems a lot like walking off a cliff.

 

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May 29, 2014
Harvard Grads as Bubble Predictors
Posted by Erik Gerding

Here is an old saw: the best way to predict bubbles is to look at the industry to which Harvard MBA grads are flocking.  I used this as a laugh line when I spoke to David’s students at Wharton in October.  Now Matt O’Brien at the Washington Post Wonkblog extends the analysis to Crimson undergrads.

O’Brien’s article is the latest salvo in the analysis of what makes “Organization Kids” flock to finance.   Kevin Roose’s Young Money made a splash when it was published earlier this year.  Academics looking to understand students should consider delving into what makes students who enter finance and law with more than a dismissive lament of “kids these days.”  Indeed, the modern university seems designed specifically to create organization kids.  Think of how the bizarre gatekeeping rituals of college admissions filter down to create an achievement junky culture that begins in middle school if not earlier.  Students and parents seek to anticipate the divinations of middle aged oracles who themselves attempt to divine meaning from personal statements and lists of extracurriculars.

The Harvard MBA Indicator is a fun parlor game.  But it also suggests that in trying to understand deep questions such as why bubbles begin and how financial institutions operate, we might look at a broader set of disciplines than just economics.   Some very interesting legal scholarship on bubbles, financial markets (think Stuart Banner’s history) and financial institutions (Annelise Rile’s sociological studies of Japanese firms) serves as examples of the possibilities.  If academics lament their students being organization kids, they should have a little self-awareness and step outside their own institutional comfort zone.

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May 12, 2014
Summer Reading from Colorado’s Business Law Colloquium
Posted by Erik Gerding

We enjoyed a great lineup of speakers and cutting edge scholarship here in Boulder this past semester as part of CU’s Business Law Colloquium.  The following papers make for excellent start-of-the-summer reading:

Dan Katz (Michigan State): Quantitative Legal Prediction – or – How I Learned to Stop Worrying and Start Preparing for the Data Driven Future of the Legal Services Industry: a provocative look at Big Data will help clients analyze everything from whether to bring or settle a lawsuit to how to hire legal counsel.  Katz examines implications for legal education.

Rob Jackson (Columbia): Toward a Constitutional Review of the Poison Pill (with Lucian Bebchuk): Jackson and Bebchuk kicked a hornet’s nest with their argument that some state antitakeover statutes (and, by extension, poison pills under those statutes) may be preempted by the Williams Act.  See here for the rapid fire response from Martin Lipton.

Brad Bernthal (Colorado): What the Advocate’s Playbook Reveals About FCC Institutional Tendencies in an Innovation Age: my co-teacher interviewed telecom lawyers to map out both their strategies for influencing the Federal Communications Commission and what these strategies mean for stifling innovation in that agency.

Kate Judge (Columbia): Intermediary Influence:  Judge examines the mechanisms by which intermediaries – both financial and otherwise – engage in rent-seeking rather than lowering transaction costs for market participants.  The paper helps explain everything from Tesla’s ongoing fight with the Great State of New Jersey to sell cars without relying on dealers to entrenchment by large financial conglomerates.  

Lynn Stout (Cornell): Killing Conscience: The Unintended Behavioral Consequences of 'Pay For Performance': Stout argues that pay for performance compensation in companies undermines ethical behavior by framing choices in terms of monetary reward.  This adds to the growing literature on compliance which ranges from Tom Tyler’s germinal work to Tung & Henderson, who argue for adapting pay for performance for regulators.

Steven Schwarcz (Duke): The Governance Structure of Shadow Banking: Rethinking Assumptions About Limited Liability: Schwarcz argues for imposing additional liability on the “owner-managers” of some shadow banking entities to dampen the moral hazard and excessive risk taking by these entities, which contributed to the financial crisis.  This paper joins a chorus of other papers arguing to using shareholder  or director & officer liability mechanisms to fight systemic risk.  (See Hill & PainterAdmati, Conti-Brown, & Pfleiderer; and Armour & Gordon).

[I’ll inject myself editorially on this one paper: this is a provocative idea, but one that would make debt even cheaper relative to equity than it already is.  This would encourage firms to ratchet up already high levels of leverage.  I looked at the expansion of limited liability in Britain in the 18th Century in Chapter 2 of my book.  The good news for Schwarcz’s proposal from this history: expansions of limited liability seem to have coincided and contributed to the booms in the cycle of financial crises in that country that occurred every 10 years in that country.  The bad news: unlimited liability for shareholders does not seem to have staved off crises and likely contributed to the contagion in the Panic of 1825.]

The CU Business Law Colloquium also heard from Gordon Smith (BYU), Jim Cox (Duke), Sharon Matusik (Colorado – Business), Afra Afsharipour (UC Davis), Jesse Fried (Harvard), and Brian Broughman (Indiana).  Their papers are not yet up on ssrn.

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April 04, 2014
FOMO: Just Say No
Posted by Usha Rodrigues

Haskell Murray and Anne Tucker recently blogged quite engagingly about their Fear of Missing Out (FOMO).  They made me feel old--not only because of these newfangled acronyms, but also because I remember feeling that way myself.  I found particularly brave their articulation of the suspicion that they weren't "good enough" and had somehow lucked into the job.  I remember feeling that way, too, and I have a sneaking suspicion that there are 2 kinds of junior faculty members: 1) those who think they're not really as smart as everyone else, and 2) those who really aren't as smart as everyone else.  "Arrogance" is just a few letters away from "ignorance." 

But I digress.  I remember feeling this way, and I had a mentor give me excellent advice my first year:

Just say no. 

At least, your default answer should be "no."  To my chagrin, I realized something at the end of my first year of teaching: This job has infinite demands. There are 3 elements to it: teaching, scholarship, and service.  You could devote every waking moment to your teaching, and still have more you could do.  Ditto for service.  Ditto to the nth degree for scholarship: always another talk you could attend, an article you could read.  But you can't do those things and write.  At least, I can't.  You have to get used to always feeling like there's more you can do.  You'll feel guilt, but you have to make your peace with it.

I set boundaries for myself, like trying not to travel more than once a month while classes are in session.  But the best piece of advice I got was that your default answer should be "no."

P.S. Haskell, I'd love for people to think that I'm some kind of superwoman, but that was my schedule for a brief period of my life.  Baby #3 started sleeping through the night at about 6 months.  Hallelujah!

Permalink | Law Schools/Lawyering| Legal Scholarship| Productivity| Wisdom and Virtue | Comments (0) | TrackBack (0) | Bookmark

March 03, 2014
The Risks of "Boilerplate Shock" in the Eurozone and Beyond
Posted by Greg Shill

By now, the risk that a distressed European nation such as Greece might leave the Eurozone and thereby spark global economic calamity is well known. Regular readers of this blog may even privately relish the prominence of the issue. Not since the days of the gold standard has international monetary policy come so close to being a socially acceptable topic of dinner conversation.

As I noted in my first post, observers rightly perceive the Eurozone sovereign debt crisis to be driven by political and economic forces. But many consequences of a euro breakup would be determined by law, including sources of American (specifically New York) private law.

This is a complex issue. I try to address it more fully in a new article, "Boilerplate Shock," which I've just posted on SSRN.

In brief, and to continue picking on Greece, one key question in the event of a euro breakup would be: would a court recognize an attempt by Greece to convert its euro-denominated debt into its new currency, or would it instead insist that Greece pay in euros, the currency of contract? The answer is important because, as a practical matter, requiring payment in euro would be tantamount to forcing a default.

That's the familiar narrative, anyway. And I agree. But I believe that the ubiquity of boilerplate terms in these bonds—specifically, clauses selecting governing law (usually foreign) and currency of payment (euro)—is likely to make any dispute over redenomination even more damaging than this suggests.

In the article, I argue that the sparse literature on the question of redenominating sovereign bonds overlooks some sources—especially cases interpreting New York contract law and private international law—that, if extended to Eurozone sovereign bonds, could surprise the market and cause serious global repercussions. I argue that the reason for this is not only that the dominant view overlooks what are likely controlling sources of law. It is that standardization of contract terms across the Eurozone sovereign lending market makes the stakes of surprise that much higher.

If Greece's attempt to redenominate its bonds is declared a default, then the fact that the operative terms in Italian, Spanish, Irish, etc. sovereign bonds are the same or similar makes markets likely to demand unsustainable premiums from those countries. Capital and investor flight could be very rapid. We have seen several previews of this movie over the past few years in the Eurozone, and each time official-sector bailout institutions have saved the day. But the European Union/European Central Bank and IMF probably do not have the resources to stop a broad-based bank run of this nature, to say nothing of the political support necessary to attempt it.

Maybe none of that will happen. Nevertheless, the potential for uniform contract terms to create risk not just to individual third parties but to securities markets seems likely to grow at least as fast as those markets. Using Eurozone sovereign bonds as a case study, I introduce the term "boilerplate shock" to describe the potential for standardized contract terms—when they come to govern the entire market for a given security—to transform an isolated default on a single contract into a threat to the market of which it is a part, and, possibly, to the economy in general. My larger objective here is to foster a discussion of the potential for securities law and private-sector securities lawyers to manage (or alternatively, to contribute to) systemic risk.

I've posted an abstract below and will be returning to the subject. I look forward your comments.

Boilerplate Shock abstract:

No nation was spared in the recent global downturn, but several Eurozone countries arguably took the hardest punch, and they are still down. Doubts about the solvency of Greece, Spain, and some of their neighbors are making it more likely that the euro will break up. Observers fear a single departure and sovereign debt default might set off a “bank run” on the common European currency, with devastating regional and global consequences.

What mechanisms are available to address—or ideally, to prevent—such a disaster?

One unlikely candidate is boilerplate language in the contracts that govern sovereign bonds. As suggested by the term “boilerplate,” these are provisions that have not been given a great deal of thought. And yet they have the potential to be a powerful tool in confronting the threat of a global economic conflagration—or in fanning the flames.

Scholars currently believe that a country departing the Eurozone could convert its debt obligations to a new currency, thereby rendering its debt burden manageable and staving off default. However, this Article argues that these boilerplate terms—specifically, clauses specifying the law that governs the bond and the currency in which it will be paid—would likely prevent such a result. Instead, the courts most likely to interpret these terms would probably declare a departing country’s effort to repay a sovereign bond in its new currency a default.

A default would inflict damage far beyond the immediate parties. Not only would it surprise the market, it would be taken to predict the future of other struggling European countries’ debt obligations, because they are largely governed by the same boilerplate terms.  The possibility of such a result therefore increases the risk that a single nation’s departure from the euro will bring down the currency and trigger a global meltdown.

To mitigate this risk, this Article proposes a new rule of contract interpretation that would allow a sovereign bond to be paid in the borrower’s new currency under certain circumstances. It also introduces the phrase “boilerplate shock” to describe the potential for standardized contract terms drafted by lawyers—when they come to dominate the entire market for a given security—to transform an isolated default on a single contract into a threat to the broader economy. Beyond the immediate crisis in the Eurozone, the Article urges scholars, policymakers, and practitioners to address the potential for boilerplate shock in securities markets to damage the global economy.

Permalink | Comparative Law| Contracts| Economics| Europe| European Union| Finance| Financial Crisis| Financial Institutions| Globalization/Trade| Law & Economics| Legal Scholarship| Securities| SSRN | TrackBack (0) | Bookmark

February 24, 2014
Should Legal Scholars Refrain from Writing about Macroeconomics?
Posted by Greg Shill

Yellen_janet Draghi

Greetings, Glommers! (and hello, Janet and Mario*!)

It’s an honor to join this extremely sharp and thoughtful community of corporate and commercial law scholars for the next two weeks.  The Conglomerate has long been one of my favorite law blogs and it’s truly a privilege to walk among these folks for a time (if a bit daunting to follow not just them but Urska Velikonja and her excellent guest posts).  Thanks to Gordon, David, and their Glom partners for inviting me to contribute.

By way of biographical introduction, I’m currently a Visiting Assistant Professor at the University of Denver Sturm College of Law, where I teach International Business Transactions and International Commercial Arbitration.  Last year, I did a VAP at Hofstra Law School (and taught Bus Orgs and Contracts).

In the next few weeks, I’ll be exploring a number of issues related to law and global finance.  I have a particular interest in currencies and monetary law, or the law governing monetary policy.  Two of my current projects (on which more soon) address legal aspects of critical macroeconomic policy questions that have emerged since 2008: U.S. monetary policy and the Eurozone sovereign debt crisis.

Without further ado, I will take a page from Urska and kick off my residency here with a somewhat meta question: should scholars refrain from writing about legal issues in macroeconomics, specifically monetary policy?

One thinks of monetary policy decisions—whether or not to raise interest rates, purchase billions of dollars of securities on the secondary market ("quantitative easing"), devalue or change a currency—as fundamentally driven by political and economic factors, not law.  And of course they are.  But the law has a lot to say about them and their consequences, and legal scholarship has been pretty quiet on this.

Some concrete examples of the types of questions I’m talking about would be:

  • Pursuant to its dual mandate (to maintain price stability and full employment), what kinds of measures can the Federal Reserve legally undertake for the purpose of promoting full employment?  More generally, what are the Fed’s legal constraints?
  • What recognition should American courts extend to an attempt by a departing Eurozone member state to redenominate its sovereign debt into a new currency?

When it comes to issues like these, it is probably even more true than usual that law defines the boundaries of policy.  Legal constraints in the context of U.S. monetary policy appear fairly robust even in times of crisis.  For example, policymakers themselves often cite law as a major constraint when speaking of the tools available to the Federal Reserve in combating unemployment and deflation post-2008.  Leading economics commentators do too.  Yet commentary on “Fed law” is grossly underdeveloped.  With the exception of a handful of impressive works (e.g., by Colleen Baker and Peter Conti-Brown), legal academics have largely left commentary on the Fed and macroeconomics to the econ crowd.

A different sort of abstention characterizes legal scholarship on the euro crisis.  Unlike the question of Fed power, there is a burgeoning literature on various “what-if” euro break-up scenarios.  But this writing tends to focus on the impact on individual debtors and creditors, not on the cumulative impact on the global financial system.  Again, the macro element is missing.

It is curious that so many legal scholars would voluntarily absent themselves from monetary policy debates.  The subtext is that monetary policy questions are either normatively or descriptively beyond the realm of law.  If that is scholars’ actual view, I think it is misguided.  But maybe the silence is not as revealing as all that.

  1. One issue is sources.  You will not find a lot of useful caselaw on the Fed’s mandate or the Federal Reserve Act of 1913, and the relevant statutes and regulations are not very illuminating.  Further, it’s a secretive institution and that makes any research (legal or otherwise) on its inner workings challenging.

  2. Another issue is focus.  Arguably the natural home of legal scholarship on domestic monetary issues, for example, should be administrative law.  But the admin scholarly gestalt is not generally as econ-centric as, say, securities law.  Meanwhile, securities scholars tend to focus on microeconomic issues like management-shareholder dynamics.

  3. A final possibility, at least in the international realm, is historical.  After World War II, Bretton Woods established a legal framework intended to minimize the chance that monetary policy would again be used as a weapon of war.  The Bretton Woods system collapsed over forty years ago, the giants of international monetary law (Frederick Mann, Arthur Nussbaum) wrote (and died) during the twentieth century, and now even some of the leading scholars who followed in their footsteps have passed away.  At the same time, capital now flows freely across borders and global financial regulation has become less legalized in general.  These factors plus the decline of exchange-rate regulations (most countries let their currencies float) may have undermined scholars’ interest in monetary law.  But as the ongoing euro saga demonstrates, international monetary law and institutions remain as critical as ever.

These are some possible explanations for why legal scholars have largely neglected questions of monetary law, but I’m sure I’ve overlooked others.  What do you think?

*Pictured are Janet Yellen and Mario Draghi, chiefs, respectively, of the Federal Reserve and the European Central Bank.

Permalink | Administrative Law| Comparative Law| Economics| European Union| Finance| Financial Crisis| Financial Institutions| Globalization/Trade| Law & Economics| Legal Scholarship | Comments (5) | TrackBack (0) | Bookmark

January 20, 2014
Moneyball versus Fighting Implicit Bias: Two Views on Tenure and Evaluating Scholarship
Posted by Erik Gerding

Last week witnessed two very different views of how faculties can and should evaluate junior scholars for hiring and tenure.  Compare this academic study (with the catchy title Moneyball for Academics ) with KerryAnn O’Meara’s essay in Slate  on countering implicit bias in tenure reviews. 

Both works leave a lot of questions unanswered.  Even if the Moneyball approach one day delivers on its promise – to use network analysis of citations to predict the success of junior academics – it would also prove less than satisfying.  Scholars who start out at citation hubs and collaborate with other scholars at those hubs – may be more likely to be cited going forward.  But does that make their work more valuable?  If financial markets are marked by fads, fashions, herding, and information cascades, the “market for ideas” (whatever that means) is even more susceptible to these dynamics.  At least financial markets have arbitrageurs.  (If only Socrates was able to ride out his short sale of Athenian democracy a little bit longer.)

The Slate article lies at the opposite end of the spectrum of Moneyball.  O’Meara is critical of excessive reliance of quantitative factors –including citation counts – in evaluating scholarship.  She argues that, to address problems of implicit bias, faculties should take a broader view of what constitutes scholarly contributions than traditional measures, including the use of external  reviewers.  But what does that look like in practice?  If there is an inescapable level of subjectivity to any evaluation of scholarship, what standards should apply? 

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January 15, 2014
My new book: Law, Bubbles, and Financial Regulation
Posted by Erik Gerding

After over four years of work, my book Law, Bubbles, and Financial Regulation came out at the end of 2013.  You can read a longer description of the book at the Harvard Corporate Governance blog.  Blurbs from Liaquat Ahamed, Michael Barr, Margaret Blair, Frank Partnoy, and Nouriel Roubini are on the Routledge’s web site and the book's Amazon page. The introductory chapter is available for free on ssrn.

Look for a Conglomerate book club on the book on the first week of February!

Permalink | Books| Comparative Law| Corporate Law| Economics| Finance| Financial Crisis| Financial Institutions| Law & Economics| Legal History| Legal Scholarship| Securities| White Collar Crime| Wisdom and Virtue | Comments (0) | TrackBack (0) | Bookmark

December 29, 2013
Symposium on Cunningham's Contracts in the Real World; Contract as Pattern Language
Posted by Erik Gerding

Just before Christmas the Washington Law Review published a symposium issue honoring Larry Cunningham's new book, Contracts in the Real World.  The issue is a good read for Contracts teachers.  You can read my contribution, "Contracts as Pattern Language" here.  The abstract for this essay is below:

Christopher Alexander’s architectural theory of a "pattern language" influenced the development of object-oriented computer programming. This pattern language framework also explains the design of legal contracts. Moreover, the pattern language rubric explains how legal agreements interlock to create complex transactions and how transactions interconnect to create markets. This pattern language framework helps account for evidence, including from the global financial crisis, of failures in modern contract design.

A pattern represents an encapsulated conceptual solution to a recurring design problem. Patterns save architects and designers from having to reinvent the wheel; they can use solutions that evolved over time to address similar problems. Contract patterns represent encapsulated solutions within a legal agreement (or set of agreements) to a specific legal problem. This problem might consist of a need to match the particular objectives of counterparties in a discrete part of a bargain or to address certain legal rules. A contract pattern interlocks, nests, and works together with other contract patterns to solve more complex problems and create more elaborate bargains. Interlocking patterns enable scalability. Just as Alexander’s architectural patterns for rooms create patterns for buildings, which create patterns for neighborhoods and cities, patterns of individual contract provisions form legal agreement patterns, which interlock to create patterns for transactions, which, mesh to create patterns for markets. For example, contract patterns help lawyers draft real estate contracts. These contracts interlock in sophisticated real estate transactions, which mesh with other contract patterns to form securitization transactions. Securitization patterns create markets for asset-backed securities, which, form part of the larger shadow banking system.

This scalability differentiates contract patterns from boilerplate. However, legal scholarship on boilerplate – including Henry Smith’s work on the modularity of contract boilerplate – patterns allow certain debt contracts to become what Gary Gorton calls "informationally insensitive" and to enjoy many of the economic features of money.

The pattern language framework explains not only how sophisticated contracts function, but also how they fail. The pattern language framework provides a lens for examining recent contracts law scholarship on the failures of sophisticated contract design, including "sticky" contract provisions in sovereign bond agreements, "Frankenstein" contracts in mortgage-backed securitizations, and the "flash crash." If modularity and contract design patterns foster the development of new financial instruments and markets, then their features can also contribute to the unraveling of these markets. For example, by restricting the information content of contracts, patterns and modularity not only midwifed the creation of liquid markets for those contracts, they also played a role in "shadow bank runs" and the catastrophic freezing of these markets. The failure of contracts can have systemic effects for entire markets when a particular contract enjoys widespread use or when it is so connected to other critical contracts that cascading failures occur.

This essay was a contribution to a symposium for Larry Cunningham’s book, Contracts in the Real World.

 

Permalink | Contracts| Legal Scholarship| Teaching| Transactional Law | Comments (0) | TrackBack (0) | Bookmark

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