Study

This two-credit course will consider and analyze corporate mergers and acquisitions and the process of initiating and completing a corporate acquisition. Topics covered will include the structures commonly used in M&A transactions (and the factors affecting choice of deal structure); strategies employed by the acquiring party and the target firm in negotiating an acquisition and the differing roles played by the various parties involved in a transaction; the different types of agreements and other documents an attorney will encounter and negotiate over the course of a transaction; the critical role of information in M&A deals; conducting due diligence; the elements, structure and key terms of a typical acquisition agreement; the roles and responsibilities of management, Boards of Directors and shareholders in connection with transactions; securities laws affecting transactions; an introduction to private equity M&A; acquisition financing; and getting the transaction to closing.

Insurance is a trillion dollar per year industry and serves significant social and economic functions across society. Insurance is premised on the fundamental concepts of risk management and risk transfer. Attorneys specializing in a wide-variety of practice areas should appreciate the importance of insurance when advising on commercial transactions and seeking to resolve all types of disputes. This course is designed to provide students with an understanding of basic insurance law concepts, particularly in the context of Commercial General Liability (CGL) insurance, the most common type of liability insurance maintained by businesses of all sizes and in all industries across the United States. Students will gain a practical understanding of insurance theory and the significance of insurance in risk management and risk transfer; the business of insurance, including the roles of the various players and the nature of various insurance products; principles of insurance contract construction and application; and some of the more frequently disputed insurance coverage issues in the context of CGL insurance policies. The course will also cover basic regulatory concepts and London Market/Bermuda Market-specific topics, as well as the emergence of specialty-related insurance products (cyber, media, pollution liability, etc.)

The final exam will be in the form of a take home writing assignment – it will consist of researching various insurance coverage issues and writing an opinion memorandum to a client (10-12 pages; open book/research using Westlaw/Lexis). Students will have at least a week to prepare.

The principles applied in structuring financial products in the commercial context reflect a balance of the interests of corporate stakeholders and the rights of third parties. This course will examine these principles with the goal of equipping the student with a base of knowledge that would be readily applied in a finance practice of a commercial law firm. Focusing primarily on traditional syndicated debt finance and securitization transactions, we will examine evolving market conventions that influence debt terms, the rights and expectations of stakeholders in distressed situations and bankruptcy, and the regulatory and compliance structure governing the issuance of these obligations. As part of this process, we also will explore the structuring of letters of credit, derivative transactions, debtor-in-possession financing, and other related financial products.

Contract Drafting is an upper-level simulation course that teaches basic practical skills by having students work “in role” as lawyers undertaking various drafting tasks in a series of exercises. While the skills taught will be basic, they will also be translatable to more sophisticated contracts. The course will feature lectures, class discussions, and in-class business issue-spotting and drafting exercises, with an emphasis on the exercises. There will be pre-class reading assignments from the text, sometimes supplemented with other outside reading, including various sample contracts. Some exercises will be group projects, and regular peer feedback, along with feedback from the instructor, will be a feature. Grading will be on the basis of written drafting assignments, at least one graded peer-feedback assignment, and class participation.

Students who take Law 519 Contract Drafting may not take Law 522 Contract Drafting: The Next Generation.

This course explores the substantive and procedural aspects of inhouse law practice. Class sessions often include guest general counsels to survey in-house legal topics, engage with real world challenges, discuss current relevant events, and distill best practices for the role. Students will have team-based interdisciplinary project assignments that draw from topics discussed in the class, reflecting real-world scenarios and providing legal representation experience. Guest general counsels are typically leading practitioners who engage with the class from a variety of perspectives, ranging from Chief Legal Officers of Fortune 50 companies to general counsels who helped grow entrepreneurial startups into household names.

The course is designed for any student interested in inhouse practice – those who wish to work in a law firm or governmental role and interact with inhouse counsel, those who would like to practice inhouse, and those who are interested in exploring different career paths.  It is intended to provide law school students with an understanding of and practical skills for inhouse practice, legal issues unique to that role, and practical issues that face inhouse lawyers. 

20%: Reflection Message Board Posts
Each student will publish five brief message board posts during the semester reflecting upon insights or thoughts of interest from guest general counsel presentations.

30%: Memo
Student assume the role of attorney with an inhouse legal department and prepare a 5-page memo responding to a fact pattern and scenario; the memo provides an opportunity to demonstrate legal analysis and practical approaches to the issues.  They will also record and upload a five-minute presentation of their memo's findings to the "general counsel" of the company.

40%: Project
Halfway through the semester, students divide into teams of 4 persons. Each team will receive a fact pattern for a significant business-level-event problem which they will analyze and present their findings, legal analysis and recommendation to the CEO and board of directors for said company.

10%: Class Engagement

No prerequisites are necessary.

Lawyers, scholars, business executives, and ordinary people have consistently asked a fundamental question: what is the role of the corporation in society? One way of answering this question is to look to corporate law and consider corporate purpose and its accompanying debates. Yet another way of answering this question involves debates around corporate personhood, especially as they arise in the context of corporate constitutional rights. At bottom, we are continually confronted with the same questions: What rights does the corporation have? How should government regulate the corporation and the power it wields? What is the role of the corporation in American democracy specifically? What does it mean for corporations to engage in social and political activism? Should they do so at all? This course will explore these questions from both a public law and private law perspective, including the ways in which corporate governance can respond to some of these questions. In doing so, this course will bridge a gap between constitutional law and corporate law by focusing on where the doctrines intersect. Students will analyze case law, scholarly literature, and selected popular and practitioner-focused readings in this space.

Throughout this course, there are two overarching questions that we will consider: (1) What should corporate decisionmakers be mindful of when it comes to corporate social and political activity, including the assertion of corporate constitutional rights? and (2) What does the assertion of corporate constitutional rights mean for American democracy and its survival?

The course will be taught as a two-hour weekly seminar, focused on class discussion of assigned readings. Students will complete five three-page response papers and one final fifteen page paper. For an additional credit, students may also fulfill their SRWP requirement with this seminar with my permission and receive an additional credit that counts as an independent study on a credit/no-credit basis.

The goal of this class is for students to develop skills working with sophisticated clients on complex issues that lack easy answers and to simulate the practice of law in a way that a young associate is likely to experience it whether at a large law firm or in a small legal office. The primary focus is interviewing and counseling business clients and drafting client-related communications.

The first part of the class is split into five two-week segments. In the first week of each segment, the class will study a legal issue and prepare to interview the client. Then, one student interviews the client about a simulated scenario in a conference call as the rest of the class observes.  After the call, the class assesses the legal issues and strategies for responding. Students must then decide what advice to give.

In the second week of each segment, the class evaluates potential responses and prepares to advise the client. Another student counsels the client as the class observes. The focus of the class is on client communications, legal strategy, and developing professional skills, and students will gain exposure to the types of issues commonly faced by corporate counsel, including contract negotiations and potential claims.

Students will also practice working in a law office environment by sending emails to the professor that simulate reports to a supervising attorney and by submitting timesheets showing work they have completed. The final three weeks focus on a 15-page paper that will require independent research on a complex legal topic assigned by the professor. Through these exercises, students will learn to speak confidently with experienced business executives, collect information efficiently from busy professionals, and deliver practical, business-oriented legal advice orally and in writing.

What does it take to thrive as a transactional attorney today and tomorrow? Future of Contracts aims to expose students to current issues in the digital transformation of legal services—e.g. harnessing data, facilitating operations and project management with design and technology, applying artificial intelligence to key functions, etc.—in order to help our approaches to transactional law and contracts practice be “future friendly.”

There is no question that a sea change is underway and that new are key forces for change. Legal professionals are increasingly turning to accessible and impactful technologies that help them achieve better outcomes and offer higher value through data-driven analytics and insights, higher efficiency and productivity, and greater and more equitable access. Students interested in preparing for tomorrow should be exposed to this world as much as possible.

With guest experts and current materials, the focus of all deliverables will be on realistic experiences of being a transactional attorney today and tomorrow. Graded work product will include a series of individual and team assessments—of legal tech companies, modern business challenges, and opportunities for greater access to justice.

Class will meet on a regular schedule except that one class will be canceled in order for students to take part in the Duke Center on Law & Technology’s Future of Contracts Design Derby. That will likely happen on Friday 23 February 2024. If registering, please calendar that date. (see story from 2023 Future of Contract Design Derby: https://law.duke.edu/news/students-seven-law-schools-participate-2023-future-contracts-design-derby/)

No textbook required.

Agency law encompasses the legal consequences of consensual relationships in which one person (the “principal”) manifests assent that another person (the “agent”) shall, subject to the principal’s right of control, have power to affect the principal’s legal relations through the agent’s acts and on the principal’s behalf. As the principal’s representative, an agent owes fiduciary duties to the principal. Agency doctrine applies to a wide range of relationships in which one person has legally-consequential power to represent another, populating the category, “agent,” with a variety of exemplars: lawyers, brokers in securities and other markets, officers of corporations and other legal entities, talent and literary agents, auction houses, and more. Usually, agency relationships contemplate three distinct persons: agent, principal, and third parties with whom the agent interacts, with legal consequences for all three. Agency law also governs the relationship between a principal and its agents, including its employees. The pervasiveness of agency means that its implications remain relevant despite changes in business structures and economies more generally.  This seminar covers the legal doctrines that make agency a distinct subject with in the law, in particular those differentiating agency from general contract and tort law. It also covers a number of contemporary examples in which agency doctrine may—or may not—apply with significant consequences. These may include the status of Uber drivers and other actors who perform services via platforms; the duties of commodities brokers, including merchants in financial derivatives products; the consequences of imputing an agent’s knowledge to the principal; agency as a vehicle for the imposition of vicarious liability; and the consequences for the agent and third party when a principal is undisclosed, unidentified, or undetermined.

The seminar will meet weekly with assigned readings. Each student will write a research paper on a topic to be chosen with the instructor’s consent and will make brief presentations to the seminar as work on the paper proceeds

The course will examine the regulation of NCAA athletics and the enforcement of NCAA rules. It will examine in detail several high profile NCAA cases including those involving Penn State, Miami and UNC-Chapel Hill.

The Internet, the increased power of computing and new technology are driving the decentralization of all aspects of the global economy, including financial services. Today, we can surf the Internet, download apps, listen to music, shop, send money to friends and family, manage our financial accounts, and buy bitcoin – all from our smartphones.

For decades, banks had been one-stop shops for financial services. Financial technology firms (fintechs), leveraging the sharing of personal customer bank account data, have quickly emerged to unbundle aspects of financial services and rebundle them on platforms. The pace of platformization has picked up since the Global Financial Crisis of 2008, yet financial laws and regulations have not kept pace. Data protection laws were passed in the 1970s long before the advent of fintech services and products, and customer liability protections do not fully extend to nonbank-provided mobile payment transactions.

Meanwhile, money is making a leap in evolution. From commodity-based currencies to fiat-based currencies that support commercial bank money and mobile payments, we now see an emergence in cryptocurrencies beginning with Bitcoin launched in 2009. Questions about whether central banks should issue their own form of digital currency became more pressing when Facebook announced its plans in 2020 to issue a digital currency: Libra. Now central banks around the world are exploring issuing central bank digital currencies or CBDCs. These developments raise important questions of how best to design CBDCs and what kinds of personal data can be collected on users transacting in CBDCs.

New technologies such as blockchain are driving further innovation in financial services. After the advent of native cryptocurrencies like Bitcoin and Ethereum with high price volatility, stablecoins were developed with the goal of being more “stable”. However, it is uncertain under US laws or regulations if these digital assets are commodities, securities, or currency. These blockchain technologies are driving decentralization of financial services, and perhaps the largest legal and policy question of all is how should decentralized finance, or DeFi, fits in our current framework of laws and regulations.

This course aims to provide you with an understanding of legal and policy issues raised by tech-driven financial innovation. You will learn about the critical legal, regulatory, and policy issues associated with cryptocurrencies, initial coin offerings, online lending, new payments technologies, and financial account aggregators. In addition, you will learn how regulatory agencies in the U.S. are continually adjusting to the emergence of new financial technologies.

This course will be delivered online.  Students will be assessed on class participation and a 25-30 page research paper. This paper may not be used to satisfy the JD SRWP requirement without permission.  The paper will satisfy the LLM writing requirement.

Is bankruptcy broken?  For some years, many academics and practitioners have argued that the nation's business and consumer bankruptcy systems are outdated or otherwise not fit for their intended purpose.  The course will examine selected topics in bankruptcy law relating to this theme (but focusing most heavily on chapter 11 of the Bankruptcy Code).  Key reading materials will include recent major reports proposing reforms to bankruptcy law, as well as excerpts from the scholarship and leading judicial decisions.  We will consider questions including: what is bankruptcy for? Is it simply a procedural remedy for enforcing substantive rights that exist independent of the bankruptcy case, or an opportunity more fairly to redistribute assets (or losses)? Is bankruptcy special?  Should be Bankruptcy Code be read like any other statute, or do we need special principles for bankruptcy law, and broad equitable powers for bankruptcy courts, to encourage businesses and consumers to reorganize?  We will use case studies like the Purdue Pharma opioid-crisis bankruptcy to assess this.  In the final, consumer bankruptcy component of the course, we will grapple with the reality that most consumer reorganizations are unsuccessful and consider whether the current system strikes the appropriate balance between debtors’ rights and creditors’ protection. 

We will begin each topic by covering the relevant features of bankruptcy law, and you do not need to have taken a bankruptcy class to take this seminar. The objective of the seminar is to provide insight and into and allow for debate of bankruptcy theory and policy; in the process, we will consider the extent to which abstract theories of bankruptcy hold up in the real world, and the topics we cover will include issues of pressing interest to current bankruptcy practitioners. 

Students will be required to participate in class discussions. Students may complete either a series of reflection papers examining the reading materials and topics discussed, or one longer 25-30 page paper designed to satisfy the SRWP. 

Due to substantive overlap in material, students may not concurrently enroll in Law 288: Consumer Bankruptcy & Debt and Law 586: Current Debates in Bankruptcy Law. However, if you've taken one of the courses in a previous semester and wish to take the other, that will be permitted. 

Faced with myriad health, safety, environmental, security and financial risks, how should societies respond?  This course studies the regulation of a wide array of risks, such as disease, food, drugs, medical care, biotechnology, chemicals, automobiles, air travel, drinking water, air pollution, energy, climate change, finance, violence, terrorism, emerging technologies, and extreme catastrophic risks. (Students may propose to research other risks as well.)

Across these diverse contexts, the course focuses on how regulatory institutions deal with the challenges of risk assessment (technical expertise), risk perceptions (public concerns and values), priority-setting (which risks should be regulated most), risk management (including the debates over "precaution" versus benefit-cost analysis, and risk-risk tradeoffs such as countervailing harms and co-benefits), and ongoing evaluation and updating.  It examines the rules and institutions for risk regulation, including the roles of legislative, executive/administrative, and judicial functions; the challenge of fragmentation and integration; the roles of oversight bodies (such as judicial review by courts, and executive review by US OMB/OIRA and the EU RSB); and the potential for international regulatory cooperation.

The course examines these issues through a comparative approach to risk regulation in the United States, Europe, and beyond (especially those countries of interest to the students in the course each year).  It examines the divergence, convergence, and exchange of ideas across regulatory systems; the causes of these patterns; the consequences of regulatory choices; and how regulatory systems can learn to do better.

This is a research seminar, in which students discuss and debate in class, while developing their own research.  We may also have some guest speakers.  Students' responsibilities in this course include active participation in class discussions, and writing a substantial research paper.  Students’ papers may take several approaches, such as analyzing a specific risk regulation; comparing regulation across countries; analyzing proposals to improve the regulatory system; or other related topics.

This course is Law 590, cross-listed as Environ 733.01 and PubPol 891.01.  Graduate and professional students from outside the Law School should enroll via those Environ and PubPol course numbers, and may contact the Nicholas School registrar, Erika Lovelace, e.love@duke.edu, or the Sanford School registrar, Anita Lyon, anita.lyon@duke.edu, with any questions about enrollment.  (The Law School does not use “permission numbers.”)

This course will focus on one of the most important elements in combatting, adapting to and mitigating the impact of climate change, namely the role of finance.  We will review the status of climate change science to gain an understanding of the challenge facing all of us.  Recognition and commitments by governments, including most particularly the United States, China, and Europe, will then be reviewed, before we consider the multiple linkages between finance and climate change, including the adverse impact of cryptocurrency.

Against this introduction the course will then delve into the various dimensions of financial markets and the players involved.  This is important to understand the broad ranging impact and opportunities for addressing climate change.  Once the markets and market participants are understood, the course will review the diverse roles of government agents and regulators, each of whom can have a far-reaching impact in shaping the markets and market behavior.  We will also assess the recognition of the challenge by financial market participants and their actual and potential responses to it.

A particularly thorny area is that of market analytics.  Many market operators claim to be “green,” but at this point the methods for determining the veracity of the claims remain very underdeveloped and often contradictory.  We will consider what has still to be done before we can really evaluate the “green” performance of firms and funds.  We will also face the real challenges that such firms face when trying to adapt.

The course will conclude with an assessment of the overall state of financial markets as one of the most important arenas in the struggle to meet the great challenges posed by climate change.

Patents, trademarks, copyrights, and trade secrets are the currency of an innovation economy. Each of these forms of intellectual property may be bought and sold, licensed, or used as security. How each is used will depend on the business context; the needs of a start-up company being far different from those of a multinational corporation. This course will focus on intellectual property transactions in various business contexts, including: maximizing value and assessing risks; using intellectual property in financing start-ups; protecting trade secrets; employment issues related to intellectual property; intellectual property licensing; and intellectual property in mergers, acquisitions and bankruptcy.

This advanced legal research seminar will introduce students to specific sources and strategies for researching a variety of business law topics, such as corporations, securities, and commercial bankruptcy. We will cover key primary and secondary sources for business law research: state and federal cases, statutes, regulations, and other administrative materials; subject-specific secondary sources; company disclosure documents; and sources for factual company and industry research, among others. The course will emphasize research processes, strategies, and evaluation of sources in a changing information environment. Students will develop their research skills through a variety of hands-on exercises simulating research assignments in practice. Grades will be based on review questions, research exercises, class participation, and a take-home final exam.