Faculty Publications

The demise of the judicial Chevron deference doctrine has been well- chronicled. This article vets key cases and pleading realities to weigh the effect of the court's dramatic repudiation.

Non-Fungible Tokens, or “NFTs,” ballooned into a 40-billion-dollar industry in under a decade. Their creators include artists, corporations, entrepreneurs, fraudsters—and even Donald Trump. While NFT owners and traders could be any of us, the parties running the marketplaces are hidden. NFT regulators have yet to be identified. Most alarmingly, the dominant NFT marketplaces are dangerously centralized. Accordingly, the publicized tales of exorbitant or manipulated NFT prices and frequent related scams abound. Meanwhile cryptocurrency—the technology enabling the life of an NFT—remains beset with, at best, theoretical models for effective regulation a full generation after its emergence.

To propose a rational start to NFT regulation, the author—a former regulator—tackles the basics: NFT design, “minting,” opening for purchase and trading, and ultimate repose in the digital wallets of purchasers. Specific legal ills occasioned by each step of the process are described. In turn, the apparent choices for NFT regulator are examined. To be sure, the eager lethargy exhibited by investment regulators confronting virtual currencies has proven rule adoption to be a quixotic dream. Thus, the author suggests that the storied FTC, the agency with the heart and the mission, be chosen as the force to slow market consolidation and counter anti-competitive practices cementing in the country’s vastest NFT marketplaces. Such remedy (enabled by the FTC’s revision of its antitrust mission late last year) would temper the rampant loosing of NFTs on all unbridled marketplaces until more ill ramifications can be catalogued and comprehended. Further, the proposed resolution of “trust-busting type” oversight is not only amply supported by the recent FTC successes but also greatly aligned with the idyllic hopes of the budding “WEB 3.0” world. Namely, if the latest incarnation of interactive cyberspace is to truly “shatter the monopolies on who controls information”, the first step is to ensure that the interrupter itself is not a monopoly.

This article highlights Elon Musk’s tweets and the SVB regional bank disaster while questioning the continued utility of traditional form filings designed to update investors.

Fairness, Inc. traces the history of the American insider trading prohibition, beginning with the adoption of the laws that federalized securities regulation and continuing up through the present. Along the way, its thirteen chapters consider measures adopted and rejected by Congress, parallel provisions, the complete arsenal of prohibition weapons (private and public), and the accompanying spate of insider trading penalties. Further, the book delves into history to focus on the people who helped shape the prohibition, as well as related legal maneuverings including the amendments to the FRCP that enabled class actions and the prolonged evolution of the insider trading "fine." Additionally, the book provides the highlights of the monies rewarded through insider trading actions, thus demonstrating that--by a conservative tally--billions of dollars have been rewarded by the aggressive use of the prohibition between 1968 and the present. The book includes over 300 footnotes and 200 bibliographical entries explaining the origins of cites and rules, as well as basic concepts of securities law. Finally, the references to over 125 Rule 10b-5 cases are punctuated by full analysis of the key insider trading cases based upon review of lower court decisions, oral arguments, appellate opinions, and commentary thereon.

Oral Advocacy: Style and Substance is the most comprehensive and practice-oriented book on the subject. The seven chapters address, in turn, the physical demands, vocabulary choices, organizational requirements, and performance tasks challenging the young oralist. Consistent "Chapter Objective" and "Reminder" lists highlight the takeaways of the instruction, as well as the potential pitfalls of rushing the skill. Over a dozen rules of law are integrated into the book's seventeen exercises and more than twenty-five examples. The art of handling questions and maintaining control of the conversation are similarly addressed. Additionally, policy arguments and rules of advocacy competitions are exemplified and explained. The accompanying Teacher's Manual serves to outline a course of guidance for everyone from 1L Legal Writing professors to moot court team coaches.

This course book stresses the basics of Legal Writing, condensed to a 2-part formula. This universal formula is then demonstrated within a variety of legal documents, ranging from such traditional formats as the Office Memorandum and Trial Motion to such omnipresent forms as the industry Comment Letter and law school Note. Dedicated chapters focus on locating proper legal language and opportunities for practice at Legal Writing. Subtleties such as the consistent need for policy arguments and counter-analyses are also emphasized. Each of the 14 chapters commences with clearly stated outcome objectives, followed by instruction. That instruction pauses for "Weak" and "Better" examples and exercises; both the examples and the exercises are focused on business law principles, cases, and statutes. The student thus engages in a true "learn as you go approach," completing over 30 exercises while gaining the additional takeaway of a familiarity with business law topics both time-honored (e.g., "piercing the corporate veil") and timely (e.g., Bitcoin, crowdfunding, and online gambling). The accompanying Teacher's Manual includes detailed answers to each of the course book exercises, as well as considerations for follow-up discussion and an additional exercise per chapter. The manual also suggests a model syllabus for a 14-week 1L Legal Writing course. Overall, Legal Writing, All Business avoids the traps of omnibus legal writing texts (which stretch to cover research, analysis, oral argument and grammar) and scattered subject matter (ranging from torts to criminal law). The author has taught Legal Writing for 9 years. He previously served as a litigator, arbitrator, and counselor. He has designed 10 law school courses and authored such documents as charging instruments, pleadings, settlements, office memos, trial motions, industry comment letters, blog postings, law review articles, and case comments.