Archive for September, 2014

Music for contracts

My students know all too well that I’m a music fan.  One of my teaching gimmicks is to associate material to be covered in class with particular songs.  I could make the pious claim that this is part of a calculated attempt to enhance student learning by creating what this source describes as a “soundtrack for a learning activity”.  But, for the most part… well, I just like music.

So far this semester, we’ve had Loudon Wainwright III’s “Down Drinking at the Bar” (in the class on Lucy v. Zehmer)


…Marvin Gaye’s “I Heard it Through the Grapevine” (in the class that covered indirect revocation of an offer)


…and Simple Minds “Promised You a Miracle” (in the classes on consideration)


I thought it might be difficult to come up with something for this week’s class on promissory estoppel.  One possibility is Jason Mraz’s, “You Can Rely on Me”.


A bit cheesy, maybe.  Then I stumbled across a character called Josh Keesan, a 2009 BerkeleyLaw graduate.  His website bio states:


“Josh Keesan, Boalt ’09, believes that there ought to be an alternative to the standard commercial study aids peddled to law students. He has toiled considerably in pursuit of this belief, and now, his selfless mission has borne fruit for law students everywhere: The Law of Rock, Vol. 1.

Put down your commercial outlines and treatises: here, for the first time, you can learn complex legal doctrines through these digestible pop-rock gems. Spend no more time puzzling over these once impenetrable concepts – the rock n’ roll antidote has arrived! On his first EP, he turns to the chestnuts of 1L year, pumps them through his infallibly infectious pop songwriting process, and ends up with songs guaranteed to boost your spirits AND your GPA.”


And, guess what, there’s a song on there that I will be urging all my students to add to their Spotify playlists and ITunes libraries… a song called “Promissory Estoppel”


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Back in June I posted about the American Bankruptcy Institute’s current efforts to reform Chapter 11 of the Bankruptcy Code. The University of Illinois Law Review has kindly agreed to post my very modest contribution to the ABI’s deliberations in which I try to articulate why I am sceptical about legislative attempts to dilute secured creditors’ rights in bankruptcy. The paper, accessible here, is entitled, “Statutory Erosion of Secured Creditors’ Rights: Some Lessons from the United Kingdom” and the abstract goes like this:

“Concerns about secured creditor capture of Chapter 11 are now part of the corporate bankruptcy reform conversation in the United States. So, for example, the American Bankruptcy Institute’s Commission on Chapter 11, scheduled to report and make recommendations for the reform of United States business reorganization law by the end of 2014, has the issue of secured creditors’ rights in bankruptcy squarely on its radar. The narrative is now well established and oft repeated. Whereas in the past, firms filing for Chapter 11 would come into the bankruptcy process with at least some unencumbered assets, modern firms tend to have capital structures that are entirely consumed by multiple layers of secured debt. And so, according to the prevailing conventional wisdom, Chapter 11 in the general run of cases has become little more than a glorified nationwide foreclosure process through which secured creditors can exit via a quick section 363 sale or an outright liquidation that is far from guaranteed to maximize the welfare of all creditors. But can concerns about the possible downside of secured creditor control of corporate reorganization be converted into effective reforms?

This paper (based on the author’s presentation at a symposium jointly sponsored by the American Bankruptcy Institute and the University of Illinois), offers insights from experience in England and Wales that, it is hoped, will assist reformers in the US to think through the possible consequences of certain types of reform proposal. The paper starts from the premise that lenders that are powerful enough to bargain for superior control and priority rights inside or outside of bankruptcy will be equally capable of adjusting to legal changes that affect, or are perceived as affecting, their interests.

Four ways in which lenders will adjust to “adverse” bankruptcy reform are identified: (i) meta bargaining; (ii) adjustments to pre-bankruptcy behaviour; (iii) transactional innovation; and (iv) shape shifting. The paper then illustrates how lenders in England and Wales have successfully adjusted to statutory attempts to undermine their bankruptcy priority and (via the abolition of administrative receivership) erode their control rights.”

I guess I may have to rethink the reference to the “United Kingdom” in the title if the Scots vote for independence on Thursday 18th September…

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Visual learners

New semester.  New challenges.  A brand new 1L Contracts class has checked in and I like to think we are having fun already of a fashion (I certainly am). As usual I am doing my best to learn 60 plus names and am trying to offer something for everyone despite the diversity of individual learning styles.  Those of you who self-identify as visual learners may want to check out this post on the Law School Academic Support Blog.

Enjoy the semester.

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