Academic Requirements
To receive the Certificate in Business and Transactional Law, a candidate must complete the following:
Coursework
Required Courses:
This course reviews principles of agency and the essentials of partnership, limited partnership, and the limited liability company. The primary focus of the course is the legal framework for the governance of the modern corporation. Topics considered include choice of organization, distribution of powers, fiduciary duties, questions of corporate governance, the special problems of closely held corporations, the regulation of securities transactions, mergers, acquisitions, and takeovers.
Taxation I is a basic federal income tax course dealing with taxation of the individual. It covers the questions of what income is, what expenses are deductible, when such income and deductions are realized or allowed, at what rates the income is taxed, and whether income can be assigned to another. Both policy and practical concerns will be discussed.
This course provides an integrated examination of sales of goods and secured transactions as governed by Articles 2 and 9 of the Uniform Commercial Code and related bodies of law, including Articles 1, 2A, 3, 5 and 8 of the Uniform Commercial Code and the federal Bankruptcy Code. Commercial law in general – and sales of goods and secured transactions in particular – provide the legal foundation for our economic system, and virtually all lawyers (regardless of practice concentration, and including both litigators and transactional practitioners) will encounter these matters in their practices (both for themselves and on behalf of their clients).
Students taking the course will learn not only the substantive law upon which these transactions are based, but also the commercial and transactional context and vocabulary relevant to these transactions and the role that transactional lawyers play in planning and executing them. Stressing careful statutory analysis and problem solving, we will analyze issues that arise in these transactions from a multitude of perspectives, including those of the buyer, the seller, their creditors and third parties. Additionally, we will examine more modern concepts of contract formation in the age of electronic commerce. The format of this class will be problem and transactional based, providing a more hands-on and practical approach to applying the UCC provisions. Finally, we will consider the impact of bankruptcy on these transactions.
It is strongly recommended (but not required) that candidates take all three of these courses, in which case the candidate may designate one of them as a qualifying Elective Course.
Elective Courses
Six credits from the following, one of which must include a financial literacy component as designated by an *:
This collaborative course, developed and presented jointly by Professors Harkins and Kaufman, will give law students and graduate business students working together hands-on experience in how transactional lawyers and business professionals approach, analyze, identify and resolve issues arising in a pending business transaction — in this case, a business acquisition financed with both debt and equity components. During the course, students will examine not only substantive legal and business issues presented by the transaction, but also process. Not just the “why” of the transaction, but the “how.”
Topics will include transactional risk assessment and management, transaction structure, valuation fundamentals, and key steps in the transacting process.
Using hypothetical situations based on actual situations, this course will offer students a hands-on journey through a variety of important commercial law transactions that are regularly encountered in today’s business world, including commercial financing arrangements, secured transactions, letters of credit, commercial guarantees, personal property sales and leases, and – time permitting – checks and electronic funds transfers, warehouse receipts, and bills of lading. Students will gain experience in the various tasks that lawyers representing parties in these transactions typically undertake and in the preparation and negotiation of relevant commercial transaction documents. In addition, students will see firsthand how transactional lawyers can apply principles of commercial law to the process to make it more likely that their clients will realize their objectives in entering into the transaction. Prerequisite: Secured Transactions (LAW 629).
This course examines the control of private economic power through government enforcement and private damage suits under the Sherman and Clayton Acts. The topics considered include legal and economic concepts of monopoly power and monopolization; collaboration among competitors to restrain trade by fixing prices, allocating markets or customers, or by other conduct with the same effects; vertical relationships among firms at different levels of production that operate to restrain trade; and horizontal, vertical and conglomerate mergers.
This course, formerly presented under the title “Applied Business Associations: Financing and Securities Regulation,” will examine selected legal topics not addressed — or addressed only at an introductory level — in Business Associations regarding the formation, organization, operation, capitalization and financing of the principal forms of business associations used today, with particular focus on limited liability companies and for-profit business corporations. The content of the course may vary from year to year depending on the instructor and the matters previously covered in Business Associations. However, topics will likely include an examination of customary organizational and related operational documents for the various forms of business enterprises; issues arising in connection with the issuance of stock and other ownership interests, dividends and distributions; an enterprise’s redemption or repurchase of its shares or other ownership interests; valuation of a corporate or other business enterprise; the rights and remedies of minority and preferred equityholders, bond holders and others who hold debt, convertible or other senior securities; mergers, acquisitions and other fundamental transactions; the securities regulation process and the exemptions therefrom; and the rights and liabilities of purchasers and sellers of securities. Financial literacy relevant to the role of the transactional lawyer will be stressed.
This course will focus on federal bankruptcy law and practice. Coverage will include the study of the U.S. Bankruptcy Code, as applied to business and consumer cases. The public policy issues implicated by the bankruptcy system will also be examined. A business bankruptcy case simulation will be used to teach the capstone module of the course. Prerequisite: Secured Transactions (Law 629).
This course provides an introduction to the law and policy of cannabis. Cannabis law and policy has seen major upheavals over the past few decades. We will explore the history of prohibition and reform, examine the competing approaches to regulating marijuana, the policies behind those approaches, and the authority of various government actors to pursue them. This inquiry implicates reference to common law and selected provisions of international treaties, federal statutes, state statutes, and local ordinances. We will analyze the inquiry from the perspective of consumers, suppliers, and third parties, looking at both prohibition and legalization regimes. In addition to participation in classroom discussions, students will be required to produce several short writing projects during the semester. Class discussion will be supplemented with selected problem sets and simulations in class and also a field trip to a few local cannabis businesses, e.g. cultivation, product manufacturing, and retail facilities.
This course examines the social and environmental obligations, if any, imposed on corporations beyond pure profit maximization. Milton Friedman famously wrote that “the social responsibility of business is to increase its profits,” and, indeed, a course in the law of business associations likely reinforces the commitment to profit-maximization as a legal obligation as well. However, as evidenced by the development of new corporate forms (such as the “benefit corporation”) and the policies of Fortune 500 companies, the recent trend has been towards a recognition a broader corporate purpose in law and practice.
This course will examine corporate social responsibility, with a particular focus on sustainability and the environment. The course begins with the question of whether such a responsibility exists, drawing on potential legal, ethical, and societal sources. We will then turn to how corporations can meet their environmental obligations, or fail to, under existing law. Looking at what has already been done by some of the “best” actors, we will ultimately aim to determine the proper role for corporate governance in the pursuit of a healthier climate system and planet as a whole.
Economic development takes many forms in a wide range of settings. This course focuses on the domestic policy and practice of development in disadvantaged urban and rural communities, with attention to enterprise organization, finance transactions, and creative use of the law. We will work through a series of problems that require application of lawyering skills in simulated private sector transactions and in related public policy challenges. This work implicates corporate law and alternative enterprise forms, as well as federal tax law such as New Markets Tax Credits, the Low Income Housing Credit, and charitable exemptions and constraints.
This course provides an introduction to the law of employee benefits. We will examine federal regulation of employer-sponsored benefit plans with respect to retirement and health care, and the underlying public policy issues. From time to time, we will discuss related topics such as profit-sharing plans, cafeteria plans, family and medical leave, executive compensation, workers’ compensation law, and collective bargaining. This inquiry necessarily implicates reference to selected provisions of the Employee Retirement Income Security Act (ERISA) and the Internal Revenue Code. Class discussion will be supplemented with selected problem sets and simulations in class. In the context of an employee stock ownership (ESOP) transaction and other workplace settings, we will explore ERISA “qualified plan” operation and administration, employer obligations and fiduciary duties, and rights and responsibilities of employees. In addition to participation in classroom discussions, students will be required to produce several short writing projects during the semester, with the option to expand one assignment into a full-length term paper to satisfy the upper level writing requirement and earn a third credit.
The course will provide an introduction to accounting concepts and financial reporting fundamentals. Topics will include generally accepted accounting principles and the basics of financial statements (the balance sheet, the income statement, and the statement of cash flows). Students will be taught how to critically analyze financial data and make important observations about accountants’ reports, financial statements, and financial statement footnote disclosures. Students will also develop skills in applying financial language in drafting agreements and in properly examining an expert witness on damages and other matters.
This course provides a broad survey of the three main branches of intellectual property law, namely trademark, copyright, and patent law. We will explore the similarities and differences among these varied systems of intellectual property protection, as well as examine the challenges brought about by new technologies. This course provides a foundation for advanced intellectual property courses but is also appropriate for students who seek only a general understanding of intellectual property law. A science or technical background is not necessary.
This class examines an attorney’s role in internal and regulatory investigations which take place when an institution has engaged in, or is suspected of engaging in, wrongdoing or misconduct. In these investigations, attorneys must make a number of strategic decisions about how to conduct the investigation, how to fix any identified gaps in internal controls, whether individual employees require discipline, whether to draft a report of any findings and, ultimately, whether to cooperate with regulators. The execution of the internal investigation requires attorneys to have a variety of skills, including selecting and interviewing witnesses; gathering, reviewing and evaluating evidence; drafting reports and memoranda. Regulatory investigations also require lawyers to prepare witnesses for testimony and negotiate document requests and settlements with regulators. Using investigative reports, Department of Justice and SEC memoranda, and case law, this course is intended to develop those skills and explore the many difficult decisions attorneys must make in the course of these investigations, including conflicts with witnesses; whether and how to cooperate with regulators; attorney-client privilege and work product doctrine waiver issues; the potential collateral consequences to the institution’s business and reputation; and the collateral consequences of employee discipline, civil litigation and regulatory investigations.
This course explores nonprofit corporations and related organizational forms of nonprofit enterprise. We examine state corporate law and federal tax law affecting the nonprofit sector, with attention to formation and dissolution, operation and governance, tax exemption, political and commercial activity, and regulatory constraints. We also compare nonprofit corporations with government, for-profit, and limited equity entities and identify public policy arguments for tax exemption and other differential treatment of nonprofit organizations. Class discussion is supplemented with selected problem sets and simulations in class, and students are required to produce several short writing projects during the semester.
Federal income taxation of partners and partnerships (and other business entities such as limited liability companies that are treated as partnerships for tax purposes) is governed by a tax regime that is separate and distinct from those that govern the taxation of individuals (Taxation I) and corporations and their shareholders (Taxation II). The course focuses on various aspects of this unique tax regime including the considerations that affect choice of entity and qualification as a partnership, and the tax consequences to the partnership and its partners in connection with the formation, operation and termination of a partnership, the sale of partnership interests and property, distributions from the partnership to its members and allocations of income, losses, deductions and credits.
This course is concerned with the acquisition, financing, development, operation, and disposition of real estate. The course provides an introduction to the essential material that a lawyer needs for participation in sophisticated real estate practice, including relevant doctrines and principles of the law of contracts, property, conveyance, mortgages, and leases. Attention is also devoted to financing techniques for the acquisition and development of real estate.
Issues of risk management and compliance are attracting increasing focus and attention throughout society and legal practice. Government regulation and regulatory oversight, industry-based codes of ethics, and standards of social responsibility and conduct all have been proliferating in recent years. These developments raise many issues for lawyers. This course will explore the law and practice relevant to these issues, principally from a transactional lawyer’s perspective. After a general introduction to risk and risk management, we will address a number of specific topics such as the reputational, operational and enterprise implications of risk, the transactional lawyer’s role in helping clients develop and manage appropriate and effective risk management and compliance programs, the tools available to the transactional lawyer to identify and help manage risks in the client’s transactions and business operations, and the transactional lawyer as “whistle blower” or “gate keeper.” Finally, we will examine the transactional lawyer’s own management of the risks she or he encounters in client representation (including the “bad actor” client, conflicts of interest, engagement letters and advance waivers, theories of attorney liability, transactional legal opinions, audit letter responses, and dealing with wayward partners and associates). We will use actual case studies to supplement our discussions.
Business start-ups and entrepreneurial ventures present a unique set of legal and business problems and challenges both to the principals undertaking them and to their lawyers and other advisors. The success of these ventures relies heavily on building a world-class team around the founders where the totality of those working to move the startup forward have a common language and goals. Building these ventures requires not only substantive expertise, but also emotional intelligence, an understanding of the risks, goals and personalities involved, and capacity for counseling and guiding the parties on an often wildly unpredictable journey. This course, taught collaboratively by Professors Harkins and Kaufman and including both law and MBA students, will examine these issues through these various lenses.
Topics will include case and client management, business plans, basic financial literacy, entity selection, capital formation (including the unique types, sources and roles of start-up and entrepreneurial financing), operational challenges, intellectual property identification and protection, and the roles of lawyers and other advisors in representing start-ups and entrepreneurs.
A study of the taxation of corporations (including S corporations) and their shareholders, with principal emphasis on the tax consequences of forming, operating, terminating, and selling an interest in a corporation, as well as some exploration of issues arising when one corporation acquires another corporation.
This course is designed for students who intend to practice tax law, whether in tax planning or in tax controversy work. The course will develop the student’s proficiency in conducting tax research, and will cover major aspects of federal tax practice and procedure that are of importance to tax counsel (i.e., from properly characterizing a transaction on a tax return to defending the transaction in an IRS audit and court). Topics include: Advising tax return positions and preparing returns; IRS audits; administrative resolution of tax disputes; tax litigation and settlement of tax cases; civil tax penalties and interest on underpayments and overpayments; administrative and judicial collection procedures; criminal tax investigation and prosecution; and special ethical issues in tax practice. Students will develop important practical lawyering skills by engaging in several research and drafting exercises, such as a tax opinion letter, a private letter ruling request, an IRS administrative appeals protest letter, a Tax Court petition, and an Offer-in-Compromise.
Not all of these courses are regularly offered. The program coordinator may designate or approve other courses if such courses have a substantial focus on business and transactional law.
To satisfy the financial literacy requirement, a course must include specific attention to the principal financial statements used in business (balance sheet, cash flow statement and income statement – what they show, how they work, and what lawyers can learn from them) and the related vocabulary, as well as the fundamentals and related vocabulary of business financing and capital structure. The program coordinator may waive the financial literacy requirement upon demonstration to the program coordinator’s satisfaction that the student has achieved financial literacy through his or her prior educational or professional experience.
The required courses must be taken on a graded basis. Electives taken from the list above (if taken towards the Certificate) must also be taken on a graded basis. Electives taken from the list above that are not being counted toward the nine credits may be taken on a pass-fail basis in accordance with the Student Handbook.
Research & Writing
A candidate must write a paper (or journal contribution(s)) on a topic related substantially to business and transactional law and which satisfies the upper level writing requirement (or would satisfy the upper level writing requirement if the candidate has already satisfied (or is otherwise satisfying) the upper level writing requirement). Publications and topics require prior approval from the Certificate Program Director. Candidates must submit a copy of the completed paper to the Certificate Program Director and the Registrar by April 1 of the year the candidate intends to graduate (for spring graduates).
Experiential Learning
The certificate includes an experiential learning component that can be satisfied in one of two ways. Either:
- The candidate must apply for and complete an externship that relates substantially to business and transactional issues; the externship must be pre-approved by the Certificate Program Director and the Maine Law Externship Program Director.If the externship has a low pass option in addition to a pass option, the externship must be completed with the pass option (not the low pass option) in order to satisfy the experiential learning requirement. (This does not extend the number of credits allowed for externships.)
- Or, the candidate may complete this requirement by working at a pre-approved job during law school (at least 150 working hours) focused on business and transactional law issues. It is expected that the job will involve attending meetings, regular attendance in an office, supervision and feedback. (Academic credit is not given for work at a job under this option.)
In extraordinary circumstances, the Certificate Program Director may deem the Experiential Learning requirement to be satisfied by: (a) crediting the combination of two or more student experiences that would not individually satisfy the requirement; or (b) crediting participation in significant business and transactional practicum coursework, in which case the particular practicum(s) will not count toward the student’s coursework requirement for the certificate.
Additional Information
J.D. candidates must declare their intent to obtain the certificate by the end of their third semester. A candidate’s resume can reference certificate candidacy only after declaration. Late declaration requests will be considered on a case-by-case basis. Students cannot earn both the Certificate in Business and Transactional Law and any other certificate.
A candidate will earn the certificate with distinction by averaging a B+ (3.33) or higher in the courses counted towards the certificate that are offered by the Law School. If the candidate takes more of the designated electives than are required, then the three highest grades received will be counted towards the “with distinction” designation.
