August 23, 2016
icon AALS BA: CFP deadline tomorrow!
Posted by Usha Rodrigues

Call for Papers – Joint Program with the AALS Section on Business Associations and the AALS Section on Comparative Law

The AALS Section on Business Associations and the AALS Section on Comparative Law are pleased to announce a Call for Papers for a joint program to be held on January 5, 2017, at the AALS 2017 Annual Meeting in San Francisco.  The topic of the program is “Business Law in the Global Gig Economy:  Legal Theory, Doctrine, and Innovations in the Context of Startups, Scaleups, and Unicorns.”  

Startups and entrepreneurs have long played an important role in the U.S. economy.  From Henry Ford to Mark Zuckerberg, entrepreneurs have revolutionized the ways in which their customers receive products and services. As Phil Libin, CEO of Evernote, has explained, “There’s lots of bad reasons to start a company. But there’s only one good, legitimate reason, and I think you know what it is: it’s to change the world.”

That philosophy continues today as entrepreneurs disrupt markets and challenge business and legal norms. Traditional notions of the firm, fiduciary duties, contractual bargains, and optimal capital structures may not aptly fit entrepreneurial approaches. Indeed, entrepreneurs’ business models, financing needs, and operational objectives require lawyers and scholars to rethink governance, capital structures, and regulatory schemes that may limit or impede further innovation, both nationally and transnationally.  

This program will examine the current and potential role of business, contract, and related laws on entrepreneurs and their business ventures. We hope to create a robust conversation that maps the past and future of legal theory and doctrine related to entrepreneurship—defining that concept broadly in terms of industry and size. Legal entrepreneurs also fit this model as they introduce contractual innovations and disrupt the field of business law itself. Taking a cue from entrepreneurs, the program welcomes all ideas, including those that may disrupt conventional norms.

Form and length of submission

Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of final manuscripts.   Manuscripts may be accepted for publication but must not be published prior to the Annual Meeting.  Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.  

The initial review of the papers will be blind.  Accordingly, the author should submit a cover letter with the paper.  However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school.  The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes. 

Deadline and submission method

To be considered, manuscripts or abstracts must be submitted electronically to Professor Michelle Harner, Chair-Elect of the Section on Business Associations, at  The deadline for submission is August 24, 2016.  Papers will be selected after review by members of the Executive Committees of the Sections.  The authors of the selected papers will be notified by September 26, 2016.

Publication opportunity

Papers will have the opportunity to publish in the William and Mary Business Law Journal.


Full-time faculty members of AALS member law schools are eligible to submit papers.  The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.

The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.

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August 20, 2016
icon Alabama Hiring, In, Inter Alia, Business Law
Posted by David Zaring

THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee ( The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law”

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August 10, 2016
icon DC Circuit Holds That SEC ALJs Are Constitutional
Posted by David Zaring

ALJs have endured some controversy, but the merits argument against them was never very strong.  The DC Circuit rejects it here.

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

August 06, 2016
icon Trump's Economic Advisors: "Steve, meet Steve"
Posted by Matt Bodie

Friend-of-the-blog Stephen Bainbridge might be feeling left out of Donald Trump's team of economic advisors, which is almost half "Steves."  However, he might feel lonely there as an academic, as there is only one other professor in the group. Some commentators have expressed concern about the lack of economic expertise -- see, e.g., AEI's Kevin Hassett ("Most campaigns tend to balance academics with business folks.").  But more problematically, the group is all men, and they also seem to be white (although advisor Tom Barrack's grandparents were Lebanese immigrants).  I bring this up because it demonstrates a pattern consistent with his list of eleven potential Supreme Court nominees, who were all white and mostly men.  As I said when those folks were announced , the lack of diversity is a statement by the Trump campaign.  Trump's vision for American leadership is literally an old-boy network.

Trump's economic team also seems to be strangely at odds with his policy proposals.  He attacks Clinton for her connections to billionaire Wall Streeters, but his team has several of them.  To the extent his advisors have taken policy positions on trade, they mostly seem to be in favor of free trade.  Just a few months ago, Club for Growth founder Stephen Moore wrote this editorial in favor of free trade -- one of the Club's core philosophies.  These appointments present an extremely muddle message. One of Trump's key issues is that America needs to be more protectionist in its manufacturing and labor markets.  However, Peter Navarro of UC Irvine -- the one academic in the group -- has advocated against free trade, particularly with respect to China.  You can check out a trailer for Death by China, a documentary he produced, here.

UPDATE: Greg Mankiw, Abby McCloskey, and Justin Wolfers have some juicy quotes here.

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August 01, 2016
icon Donald Trump vs. the Reality of Team Production
Posted by Matt Bodie

Donald Trump's interview with George Stephanopoulos has been getting a lot of play, for a variety of reasons.  I wanted to focus on one aspect of his comments that is actually a fairly common turn of phrase but that nevertheless is deeply wrongheaded, in my view.  When asked about the sacrifices he has made for his country, Trump said this:

I think I've made a lot of sacrifices. I work very, very hard. I've created thousands and thousands of jobs, tens of thousands of jobs, built great structures. I've had tremendous success. I think I've done a lot.

While many have objected to this notion of "sacrifice," Trump's claim to have "created thousands and thousands of jobs, tens of thousands of jobs" is also objectionable.  First of all, a job is a relationship: it's a position that works to the advantage of both the employer and the employee.  And since "employers" are generally companies, it's better to envision a company as a group of people--equity contributors and labor contributors--working together on a joint business enterprise.  Thus, a job is not "created" any more than one person "creates" a marriage by asking another person to get married.  Trump's companies may have employed ten of thousands of people, but the companies did not "create" those jobs--they instead asked workers to join in the group effort to carry on the joint enterprise at hand.

Second, just because Donald J. Trump is the head of various "Trump" organizations does not mean that "he" is those companies.  Perhaps he was instrumental in legally creating those companies and getting their businesses off the ground.  But "he" did not employ tens of thousands -- the companies did.  He's not a sole proprietor!

Third, Trump is actually a poor exemplar of the creator-capitalist, because his business model is to use his family "brand' to work with other companies to actually develop ongoing businesses.  The company puts the Trump name of the project, and then other companies generally do the work.  As a result, the Trump brand appears to be much more extensive than its actual reach. As Forbes Magazine described his approach:

Over his roller-coaster career, a core part of Trump’s decision-making process can be summarized in four words: Trump always comes first. Whatever the deal, Trump must be the star. He routinely values two things above all, even over making money: being the boss and gaining publicity. No one values the Trump brand higher than Trump himself.

Trump may have managed his brand very well, as the proliferation of Trump hotels, golf courses, and resorts would indicate.  But his company often leaves the heaving lifting to other companies as a way of leveraging the brand name while keeping the Trump organization fairly lean (i.e., fewer employees).

Trump's claim that "I alone can fix it" is symptomatic of his approach to his businesses and, presumably, his potential government service.  He doesn't see the legions of others who have worked with him to make his businesses and brand into successes.  As Alchian & Demsetz explained, businesses are team productions -- not solo efforts.  Trump has not created jobs, out of thin air, in service to others.  He instead has worked with tens of thousands of other people to make their joint enterprises into successes.  That deserves credit.  But his claim to be an economic Zeus, calling forth employment from the primordial ooze of the economy, deserves skepticism instead.  

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July 31, 2016
icon Corporate Law At Nebraska Law
Posted by David Zaring

The notice is after the jump:

more ...

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July 29, 2016
icon Corporate Law At Tennessee Law
Posted by David Zaring

They are looking, and the announcement is after the jump.


more ...

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July 25, 2016
icon Legal Obligation in International Law and International Finance
Posted by David Zaring

I've been writing some about international financial regulation this year.  Here's my take on what IFR tells us about international law, which it isn't, but which in practice it, in some ways, resembles.  It's up at SSRN, and I hope you'll give it a look.

In an era riddled with critiques of the relevance of classic international law, some have loudly given up on the subject, while others have placed their hopes in alternative mechanisms of global governance. One alternative is “soft law,” and nowhere is soft law more successful than in international financial regulation (IFR). Today, almost every bank of any size across the world has to keep similar amounts of money in its emergency reserve, cannot stake its future on complex derivatives or other forbidden trades, and faces oversight that, no matter where the bank is located, will be conducted in roughly similar ways, with roughly similar tools. And yet the promulgators of these rules consistently disavow their status as binding law.

These disavowals are disingenuous, and unpacking the reasons why has useful lessons for how international governance works, whether backed by treaty and custom or not. IFR works like traditional international law in three ways. It, like international law, depends on domestic institutions for implementation, although traditional international law has often sought to ignore the importance of any institution below the level of the state. IFR reminds us that the coordination of international interests comes with winners and losers, and therefore that the “mere coordination exercise” that international governance represents should not be dismissed, though traditional international law occasionally has been critiqued for that reason. And IFR emphasizes the necessarily messy way that fundamental legal principles are arrived at in international governance of any stripe -- something I call the contestation principle. These features of both hard and soft law have been overlooked by both the traditionalists and critics of international law, but process-driven insights like them have much to tell us about both hard and soft law, which may not, in some ways, be so different after all.

Should you be so inclined, you can find the paper here.

Permalink | Administrative Law, Finance, Financial Crisis, Financial Institutions, Globalization/Trade | Comments (View) | Bookmark

July 21, 2016
icon Congrats to Vic Fleischer!
Posted by Usha Rodrigues

Glom emeritus, friend, and tax guru Vic Fleischer is headed for Capitol Hill to become become co-chief tax counsel for Senate Finance Committee Democrats. Congrats to Vic--and to the Senate!

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July 20, 2016
icon UGA Law is Hiring in Business!
Posted by Usha Rodrigues

Readers, the University of Georgia is a terrific institution, and Athens is a lovely place to live.  Interested in being my colleague?  Send us a line!

The University of Georgia School of Law invites applications to fill one or more full-time, academic, tenure-track faculty positions at the rank of assistant professor, associate professor, or professor. Positions will begin August 2017. Applicants in the curricular areas of criminal law and procedure, evidence, business law, or finance will be considered. Applicants must be committed to producing world-class scholarship, providing first-rate legal training and engaging in meaningful service.

Applicants should have a J.D. from an accredited university. Applicants seeking the rank of assistant professor must have superior academic credentials and a demonstrated potential for excellence in scholarship, teaching, and service. Applicants seeking the rank of associate professor must have (1) superior academic credentials, (2) a record of scholarly excellence and impact, (3) superior teaching ability, and (4) a record of participation in institutional and professional service. In addition to meeting the requirements for appointment at the rank of associate professor, applicants seeking the rank of professor must be nationally or internationally recognized in the relevant field and likely to maintain that stature.

Applications will be considered until the positions are filled. All interested persons should submit a letter of interest and curriculum vitae/resume at

The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, sex, sexual orientation, gender identity, ethnicity or national origin, religion, age, genetic information, disability, or veteran status.

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July 19, 2016
icon Wharton Is Hiring In Business Ethics
Posted by David Zaring

The announcement is below, do tell your friends, and we welcome applications from JDs.

The Wharton School of the University of Pennsylvania invites applications for a tenured or tenure-track position in its Department of Legal Studies and Business Ethics.  The Department has nineteen 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, 2018, for the Ph.D. is acceptable) and a demonstrated interest in ethical issues relevant to business -- for example, the nature of corporate responsibility, the ethical significance of markets, sustainability, business philanthropy, manipulation and deception in advertising, just compensation, etc. We welcome applications from people with training in the humanities, the social sciences, and/or law. The appointment is expected to begin July 1, 2017.

Please submit electronically your letter of introduction, c.v., and one article or writing sample in PDF format via the following website by November 1, 2016:  Some decisions for interviews will be made before the deadline; so candidates are encouraged to apply early.

Questions may be addressed to Tamara English,

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


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July 18, 2016
icon Your Beach Reading: Financial Reform's Internationalism
Posted by David Zaring

I've posted on SSRN my article on the way Dodd-Frank deals with our new era of global capital markets.

Financial reform has rebalanced the power of international engagement, reducing the role of the President and his diplomats, and increasing that of Congress and independent agencies. In so doing, the reforms have readjusted a balance that many believe was skewed by the government’s response to the financial crisis. The international policy of financial reform has doctrinal implications as well: Congress has supplemented traditional international law with an endorsement of international regulatory cooperation. Because of this supplementation, the things that customary international law used to do — in particular enabling international cooperation and creating innovation in human rights — are now being done by financial regulators wielding the power of informal agreements. The privileging of regulatory cooperation, and the entry into human rights through financial regulation, is evidenced by the so-called Conflict Minerals and Resource Extraction Rules that Congress has directed the Securities and Exchange Commission to promulgate.

Do give it a look, and let me know if you have comments or thoughts.

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July 05, 2016
icon Call for Papers: Ethics in Business Transactions
Posted by Gordon Smith

The AALS Section on Transactional Law and Skills is seeking paper proposals for its program on "Ethics in Business Transactions" at the 2017 Annual Meeting in San Francisco, California. This program will feature a panel discussion to be followed by scholarly presentations selected from the Call for Papers, which is reproduced below.

The program on Ethics in Business Transactions is co-sponsored by the Section on Professional Responsibility and is scheduled to take place on Friday, January 6, 2017 from 1:30-3:15 pm.

The Section on Transactional Law and Skills is also hosting a second program entitled "Transactional Law and Entrepreneurship," which is scheduled to take place on Saturday, January 7, 2017 from 8:30-10:15 pm.

more ...

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June 30, 2016
icon The SEC Pinterest Page
Posted by David Zaring

From Corp Counsel, I'm guessing you all want to see the SEC Pinterest page.  Prettiest pictures I think I've ever seen on Pinterest.

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June 28, 2016
icon Michigan Supreme Court Embraces Corpus Linguistics
Posted by Gordon Smith

In the case of People v. Harris, the Michigan Supreme Court became the first state supreme court in the United States to embrace corpus linguistics. (I have written here about Justice Thomas Lee's concurrence in the Utah Supreme Court's Rasabout case, which is cited in this Michigan opinion.) The consolidated cases relate to the "Disclosures by Law Enforcement Officers Act" (DLEOA), which bars the use in a subsequent criminal proceeding of all "information" provided by a law enforcement officer under threat of any employment sanction. While the act does not distinguish between true and false statements, the court used corpus analysis to investigate whether "information" must be true. The majority concludes, "false or inaccurate information cannot be used against a law enforcement officer in subsequent criminal proceedings. To hold otherwise would defeat the Legislature's stated intent...."

Three police officers in Detroit were involved in the assault of Dajuan Hodges-Lamar. In a Garrity hearing, all three officers lied about the incident. As the majority noted, "A video recording of the incident [that] surfaced after defendants had made their statements ... is wholly at odds with the statements provided by defendants." The officers were subsequently charged with various crimes, including obstruction of justice, but they moved to dismiss these charges on the ground that the only evidence against them was their false statements, which were excludable under DLEOA. The district court excluded the statements, and a divided court of appeals reversed. The Michigan Supreme Court reversed, holding that DLEOA prohibits the use of all officer statements, whether true or false.

In reaching this conclusion, the majority opinion by Justice Brian K. Zahra relied on corpus linguistics:

Keeping in mind that we must interpret the word "information" as used in the DLEOA "according to the common and approved usage of the language," we apply a tool that can aid in the discovery of "how particular words or phrases are actually used in written or spoken English." The Corpus of Contemporary American English (COCA) allows users to "analyze[] ordinary meaning through a method that is quantifiable and verifiable." [Citing Stephen Mouritsen, Hard Cases and Hard Data: Assessing Corpus Linguistics as an Empirical Path to Plain Meaning, 13 Colum Sci & Tech L Rev 156, 202 (2012).]

The dissent claims that, in ordinary usage, "we should not think of someone who provided inaccurate statements as having imparted `knowledge' or `information' ...." Empirical data from the COCA, however, demonstrates the opposite. In common usage, "information" is regularly used in conjunction with adjectives suggesting it may be both true and false.* This strongly suggests that the unmodified word "information," can describe either true or false statements. Moreover, by reading each identified use of the word "information" in its surrounding context, it is clear that "information" is often used to describe false statements. Quite simply, "information" in common parlance describes perceptions conveyed about the world around us, which may be true or false.

*The footnote states:

In conducting a COCA search, the word "accurate" is the most common adjective collocated with "information" to bear a meaning that refers to truth or falsity. The words "false" and "inaccurate" are also commonly collocated with "information."

Ok, that's interesting enough, but it gets much more interesting when Justice Stephen Markman in dissent engages the majority's corpus analysis:

The majority relies on the Corpus of Contemporary American English (COCA), a truly remarkable and comprehensive source of ordinary English language usage compiled by linguistic scholars at Brigham Young University, in particular Professor Mark Davies. The COCA, available at (accessed June 7, 2016), is an online "resource [that can be used by courts] for assessing the ordinary meaning of a statutory term." State v Rasabout, 2015 Utah 72, ¶ 72; 356 P3d 1258 (2015) (Lee, A.C.J., concurring in part) (assessing with an impressive thoroughness, in ¶¶ 40-134, the strengths and limitations of using a corpus to facilitate the interpretive processes of the judiciary). By using the COCA, "we can access large bodies of real-world language to see how particular words or phrases are actually used in written or spoken English." Id. at ¶ 57. However, notwithstanding the majority's invocation of the COCA, I believe that the COCA actually supports the proposition set forth in this dissent that the common and most reasonable understanding of the term "information" excludes false statements.

The term "information" is found within the COCA 168,187 times and yet it is only modified by the term "truthful" 28 times, "true" 18 times, "accurate" 508 times, "inaccurate" 112 times, and "false" 271 times. In other words, the term "information" is modified by one of these adjectives 937 times. The other 167,250 times that the word "information" is used it is unmodified by one of these adjectives. That is, 99.44% of the time "information" in the COCA is unmodified by any of these adjectives related to veracity. Therefore, I disagree with the majority's contention that the COCA affords support for the proposition that the term "information" is "regularly" or "commonly" modified by one of these adjectives. I find to the contrary. And where "information" is unmodified by one of these adjectives, I believe it is overwhelmingly used to refer to truthful information.... 

I do not believe that a judicial interpretation of "information" drawn from use of the term in ½ of 1% of all of its appearances in a corpus constitutes an ordinary, common, or reasonable interpretation of the term. There is no word that cannot be abused, misused, or employed in an exotic or puzzling way in everyday discourse, and a corpus will reflect this reality; it is not, however, the purpose of a corpus to transform every such use of a word into a reasonable construction of the words of the law....

Furthermore, the reader may wish to peruse at random any number of the 167,250 uses of "information" in the COCA and assess whether the term was reasonably used and understood as indistinguishably referring to true and false information. When, for example, the doctor is offered "information" from a patient concerning the latter's condition, would either party suppose that the latter was not intending in a reasonably accurate manner to describe his symptoms as he then believed them to be? Or, by further example, when a "contract" or "trade-off" of some kind is delineated by the elected representatives of the people in the Legislature, with an explicit quid pro quo defined in terms of the production of "information," and presumably with some measure of public benefit to be derived by the production of that "information," could that Legislature genuinely have been disinterested in whether such information was true or false?

Here we see judges struggling with the rules of application under corpus analysis, an issue that was a central topic of conversation in the recent Conference on Corpus Linguistics held at BYU. We clearly have a long way to go before corpus analysis is regularized in judicial proceedings, but this case represents an nice step forward, where both majority and dissenting justices agree that corpus linguistics could inform their interpretation of the statute.

I am working with the BYU Law Review to organize a symposium on corpus linguistics to be held next winter semester. If you would like more information about the symposium, please do not hesitate to contact me.

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