Notable Faculty Scholarship

Lyman Johnson, the Laurence and Jean LeJeune Distinguished Chair in Law, continues work on several fronts in business law, corporate law, mergers, acquisitions and hostile takeovers, and securities law. His work includes presentations, academic writing and work on U.S. Supreme Court cases on mutual funds and securities. This year, Johnson twice has presented his paper,…

Lyman Johnson, the Laurence and Jean LeJeune Distinguished Chair in Law, continues work on several fronts in business law, corporate law, mergers, acquisitions and hostile takeovers, and securities law. His work includes presentations, academic writing and work on U.S. Supreme Court cases on mutual funds and securities.

This year, Johnson twice has presented his paper, “Re-Enchanting the Corporation.” The first was at the Seton Hall University Conference on Religious Legal Theory: The State of the Field and the second was at a conference co-sponsored by the Lumen Institute and the Fellowship of Christian Law Professors. The paper was published in the William and Mary Business Law Review this year. “Re-Enchanting the Corporation” brings together several streams of Johnson’s work and scholarship. The piece develops a number of ways in which religious conviction can positively influence corporate life and theory, whether one wants simply to understand the corporation or seeks to reform its conduct. It challenges the simplistic typology of “profit” and “not for profit” organizations, arguing instead for a more pluralistic approach to corporate objectives than the current either/or approach to profit pursuit.

This year, Johnson also published “Corporate Law Professors As Gatekeepers” in the University of St. Thomas Law Journal and “Are Corporate Officers Advised About Fiduciary Duties?” in Business Lawyer (with Dennis Garvis).As a presenter, Johnson has been involved in a range of activities, from participating on a panel at Boston University Law School about mutual funds to moderating a panel on religion and corporate law for the Socio-Economics section at the annual Association of American Law Schools meeting in New Orleans. Johnson also spoke at the National Press Club in Washington, D.C., at a conference sponsored by Catholic University on Innovative Approaches to Advancing Corporate Morality.Johnson continued to be active in litigation with the U.S. Supreme Court. He helped co-author an amicus brief on a securities case – Merck & Co. v. Reynolds – involving when the statute of limitations begins to run out on a Rule 10b-5 claim, the key remedial claim for defrauded investors. The case involves an issue he addressed in a 1992 Wisconsin Law Review article on the subject, and the brief draws heavily on his article. Johnson also served as an expert witness for investors in a landmark mutual fund case – Jones v. Harris Associates – decided by the U.S. Supreme Court on March 30, 2010, in a ruling favorable to investors.

The media also has sought out Johnson. He was interviewed by Minnesota Public Radio on the criminal trial of Tom Petters, who was convicted of masterminding the second-largest U.S. Ponzi scheme (Bernie Madoff’s was the largest). He also was interviewed by Minnesota Business Journal about governance failures in the financial crisis. 

Associate Professor Julie Oseid’s recent scholarship has focused on two distinct areas: persuasive writing and professionalism. She is studying American presidents whom she considers the most eloquent and analyzing their writing qualities and habits. In her professionalism work, she is evaluating the role that a lawyer’s conscience plays in legal representation.

After identifying a president’s persuasive writing quality, Oseid searches for the influences on the president that led to the development of that quality. She considers how lawyers can adopt the president’s habits to increase the persuasiveness of their writing. She has published two articles in her presidential writing series: “The Power of Brevity: Adopt Abraham Lincoln’s Habits” and “The Power of Metaphor: Thomas Jefferson’s ‘Wall of Separation between Church and State.’” She presented her paper on Lincoln at the Legal Writing Institute’s biennial conference on Marco Island, Fla., in June. She is spending the summer researching and writing about two additional presidents. She will co-author an article with Associate Dean Tom Berg about James Madison, focusing on Madison’s preparation,logic, and pragmatism. She also will begin her study of Teddy Roosevelt’s enthusiasm and sincerity.

Oseid co-authored an article with her brother Stephen D. Easton, Dean at the University of Wyoming, Law School about the role of personal conscience in a lawyer’s practice. The article, “The Trump Card: A Lawyer’s Personal Conscience or Professional Duty?” will be published in the next Wyoming Law Review. Oseid and Easton spoke at the April Wyoming Law Review Symposium (“Small Towns, Big Values: Professional Responsibility for Practitioners in Wyoming”) in Laramie, Wyo. A lively discussion between brother and sister focused on lessons learned from their mother and how the Model Rules of Professional Conduct are often consistent, but sometimes inconsistent, with their mother’s lessons. Oseid and Easton explored several values with a particular focus on conscience and its role in legal representation.

Gregory Sisk, the Orestes A. Brownson Professor of Law, has been involved with civil litigation with the federal government for most of his legal career, both inside and outside the classroom.

As an appellate attorney with the Civil Division of the U.S. Department of Justice, he briefed and argued dozens of cases in the federal courts of appeals and participated in cases before the U.S. Supreme Court. Since leaving the government, he has assisted private parties, from farmers to mining companies, in their disputes with the federal government.

Upon joining the legal academy nearly two decades ago, Sisk focused much of his scholarly work and teaching on this topic. In addition to many law review articles, he has written both a treatise and the only law school case-book in the field – both titled “Litigation With the Federal Government.” The second edition of his casebook was published last year by Foundation Press, one of the three major law school publishers. Last spring, he taught the popular elective course on the subject for the 10th time.

Three summers ago, Sisk was co-counsel in a case against the federal government before the U.S. Supreme Court. He wrote both an opening brief and a reply brief while teaching in the Summer in Rome program.

The case raised an issue which Sisk described as one that “only a lawyer could love – but one that has practical significance for a wide array of cases.” The question was whether the statute of limitations for money claims brought to the Court of Federal Claims was jurisdictional, so that even the government’s admission that a claim had been timely brought did not prevent a court from raising the issue and dismissing the case. After losing by a 7-2 vote in John R. Sand & Gravel v. U.S., Sisk, nonetheless, took some comfort in persuading Justice Ruth Bader Ginsburg, the only member of the Court who actually taught procedural issues in law school.

Sisk’s work on the Supreme Court case naturally found its way into his scholarly writing. In an article, “The Continuing Drift of Federal Sovereign Immunity Jurisprudence” (William & Mary Law Review, 2008), Sisk argued that the Supreme Court has been moving slowly toward a greater respect for the legislative promise of relief to those harmed by their government. With some unfortunate detours, the Court is moving away from a broad rule of strict construction, in favor of the government. In many cases, the Court is more inclined to use ordinary modes of statutory construction when examining provisions in statutory waivers of federal sovereign immunity.

Sisk has gained considerable attention for his scholarship on the growing competition between federal District Courts and the Court of Federal Claims for non-tort money claims against the United States. Sisk is hardly a newcomer to the subject. During his service at the Justice Department, he drafted legislation later enacted by Congress to encourage early resolution of questions about the sometimes competing jurisdictions of the District Court and the Court of Federal Claims through an interlocutory appeal to the U.S. Court of Appeals for the Federal Circuit. In a keynote speech before the annual Judicial Conference of the Court of Federal Claims, Judge S. Jay Plager of the U.S. Court of Appeals for the Federal Circuit singled out one of Sisk’s articles as the “definitive piece” on Court of Federal Claims jurisdiction over money claims and said, “it is always refreshing to find a law review article that addresses issues that are relevant to the work of judges and practicing lawyers.”

This topic has brought Sisk back to the Supreme Court. He is writing an amicus curiae brief in an Indian breach of trust case, Tohono O’odham Nation v. U.S., which had been dismissed by the Court of Federal Claims because the same claim was pending in another case before a District Court. Arguing that the Court of Federal Claims has exclusive authority in cases where the substance of the dispute is a claim for money, Sisk suggested that the better answer to the problem is to transfer the District Court case to the Court of Federal Claims to be resolved in a single case. The statute that Sisk drafted while at the Justice Department may provide the means by which to encourage this outcome while avoiding wasteful litigation about where to litigate. The Supreme Court is expected to decide the case later this year or early next year.