George W. Kuney
Lindsay Young Distinguished Professor of Law and
Director of the Clayton Center for Entrepreneurial Law
B.A., 1986, University of California, Santa Cruz
J.D., 1989, University of California, Hastings College of the Law
M.B.A., 1997, University of San Diego
gkuney@utk.edu
Selected Publications:
Books & Chapters:
Business Reorganizations (3rd Ed. forthcoming LexisNexis 2011, with Michael Gerber and Edward Janger). The third edition of this casebook is designed to make learning the Chapter 11 process an engaging, challenging, and fun experience. The book’s nine chapters, each concentrate on a different phase of the attempt to rescue the fictional, financially beleaguered Amphydynamics Corporation and its related companies. This storyline runs the length of the book, and gradually unfolds in many problems and notes within each chapter. The problems direct reading of the opinions and other materials by placing issues in context. They help students to understand the commercial transactions and business environment that form the backdrop against which the Chapter 11 drama is played out. The problems also focus attention, heighten interest, and bare some ethical dilemmas by inviting students to role-play - to think like clients as well as lawyers - and to negotiate, advise, and strategize. The third edition adds new co-authors Marcia Goldstein, Edward Janger, and George Kuney and coverage of many of the developments in chapter 11 practice that grew out of the Great Recession of 2008-2010.
The Elements of Contract Drafting with Questions and Clauses for Consideration (text and teachers manual, 3rd ed., West 2011). This text provides an overview of the issues and processes involved in drafting contracts and other transactional documents. It is designed to enable students to analyze the basic structure of contacts and other documents and develop techniques used to efficiently create those documents with precision and clarity. Includes discussion, cases, examples, and exercises based upon real-world contracts and situations.
Mastering Appellate Process (Carolina Academic Press 2011, with Donna C. Looper). Mastering Appellate Advocacy and Process covers the range of appellate procedures in use across the United States, from preserving error below and filing the notice of appeal to issuance of the final opinion and mandate. The book also covers legal drafting advocacy techniques in preparing appellate briefs and opinions, as well as oral advocacy techniques in a discussion that is useful to novices and old hands. Written for practicing lawyers as well as students, the book also includes a chapter devoted to that particular law school exercise known as moot court, identifying how typical moot court competitions are like, and unlike, real world appellate practice. The authors delve into deep technical waters while maintaining an accessible tone and structure, taking nothing for granted in terms of pre-existing knowledge or experience in the appellate field.
Contracts: Transactions and Litigation (text and teachers manual, 3rd ed., West 2011, with Robert M. Lloyd). This text is a blend of classic common law contract cases with modern, 21st-century opinions and draws heavily upon the problem method of instruction. The book compares and contrasts the common law of contracts, the Restatement (Second) of Contracts, and Uniform Commercial Code article 2 rules, as well as those of the Convention on the International Sale of Goods and the UNIDROIT Principles of International Commercial Contracts, and explores their evolution and application. The authors' approach is to emphasize the importance of context to the application of legal principles and the connenctions and overlap between the knowledge and skills needed to be a litigator and those needed by a transactional attorney.
Bamboozled; An Anatomy of a Bankruptcy: Baystate v. Bowers and its aftermath.This manuscript contains a detailed account of the Baystate v. Bowers intellectual property litigation that concluded with a Federal Circuit decision that a party could, in an end user license agreement (EULA), use contract law to broaden the rights that could be obtained in intellectual property under copyright law, and the ensuing bankruptcy of Baystate, later known as CadKey, and its acquisition by Kubotek. It is intended as an illustrative teaching tool for those that want to see what is involved in long-term bet-the-company litigation and resulting chapter 11 (and 7) practice. A version with live links to the documents cited in the footnotes is available upon request to the author at gkuney@utk.edu. To access Bamboozled, click here.
Sales, Negotiable Instruments, and Payment Systems: UCC Articles 2, 3, 4, and 5 (text and teachers manual, Clayton Center for Entrepreneurial Law 2010, with Robert M. Lloyd). This text covers the law of the Uniform Commercial Code as it applies to sales, negotiable instruments, and payment systems through descriptive prose and the problem method of instruction.
Mastering Legal Analysis and Drafting (Carolina Academic Press 2009, with Donna C. Looper). Mastering Legal Analysis and Drafting seeks to emphasize the fundamental structure and methods of legal drafting, which, the authors contend, is grounded in a surprisingly few but elemental rules and techniques of legal analysis and deployment of legal authorities amid relevant facts. It is designed to help the novice legal drafter identify those rules and techniques and show how they are used to prepare effective legal writing in different formats, most of which share common structures. The book begins with a discussion of legal analysis, followed by a discussion of general drafting principles and rules, and then proceeds to apply these concepts in the following chapters to specific forms of legal writing including: client letters, demand letters, research memoranda, motions and supporting documents, appellate briefs, contracts and instruments, and legislation. It closes with a chapter on "writing to build a record" that reprises the other chapters and highlights the key concepts.
Secured Transactions: UCC Article 9 and Bankruptcy (text and teachers manual, Center for Entrepreneurial Law 2009, with Robert M. Lloyd). This text covers the law of the Uniform Commercial Code as it applies to personal property finance and the bankruptcy code. It employs the problem method supplemented by a selection of relevant cases on the subject.
Mastering Intellectual Property Law (Carolina Academic Press 2008, with Donna C. Looper). Mastering Intellectual Property is a practical guide to the intricacies of trade secret, patent, copyright, moral rights, trademark, and related fields of intellectual property law. Less detailed than a multi-volume treatise, and aimed at an interested but novice audience, the book describes and then illustrates each of these separate but related areas of law, comparing and contrasting their distinct features, uses, benefits, and shortcomings. The book features clear statements of the applicable rules and standards of these intellectual property and follows each with illustrative examples that demonstrate the application of the abstract law to concrete facts. The book is an indispensable aid and supplement to anyone seeking to master the broad spectrum of intellectual property law.
Mastering Bankruptcy Law (Carolina Academic Press 2008). Mastering Bankruptcy is a succinct, practical guide to the intricacies of Title 11 of the United States Code. Functional in approach, it describes the operation of the general, administrative and estate management and maximization provisions of chapters 1, 3, and 5 of the Bankruptcy Code and their interaction with one another, and then turns to the operative chapters of the Code (7, 9, 11, 12, and 13) to describe how these provisions are deployed in liquidation, rehabilitation, and reorganization cases.
Legal Drafting: Process, Techniques, and Exercises (West 2007, with Thomas R. Haggard). This text provides a comprehensive and flexible teaching instrument for any course in legal drafting. It contains text, examples, and exercises that deal with both contract and statutory drafting -- making the text suitable for a general drafting course, or one that focuses on either of the two more specialized forms of a drafted document. Most of the chapters have an end-of-the-chapter exercise that tests the student's knowledge of and ability to apply the materials. It also contains further drafting exercises that involve drafting or revising either specific provisions or entire contracts and statutes.
Legal Drafting in a Nutshell (3rd edition West 2007, with Thomas R. Haggard). Legal Drafting in a Nutshell, 3d edition, provides guidance on producing transactional documents, contracts, instruments, legislation, and regulations that solve existing problems and prevent future problems. The book provides both a large scale, macro overview of the drafting process as well as small scale, micro focused discussion of the mechanics of legal documents at the sentence, word, and punctuation level. The third edition has been extensively revised to include focused, concrete discussion of ambiguity, vagueness, definitions, representations, warranties, covenants, conditions, document formatting, and drafting ethics. Legal drafting is as much a thought process as a writing process; clear thinking leads to clear drafting. This book is a guide for clear, structured thinking about drafting in order to provide readers with a structured process to follow when assembling useful legal documents. Together, professors Haggard and Kuney provide a well-rounded, multi-perspective, complete guide to the preparation of working legal documents that is useful to the student or practitioner as a primer, a text, or a reference.
Norton Bankruptcy Practice and Proceedings, Chapters 28 (Meeting of Creditors -- Section 341), 29 (Notice -- Section 342), and 30 (Examination of Debtors -- Sections 343/344)(West 2007).
Chapter 11-101: The Essentials of Chapter 11 Practice (ABI 2007, with Jonathan P. Friedland, Michael L. Bernstein, and Professor John D. Ayer). This is a compilation and expansion of a series of articles first written for the ABI Journal during 2004 and 2005. Now updated and assembled in a handy CD-ROM format, the work is an essential but fast read for new restructuring professionals from attorneys to financial restructuring advisors. Law students and lawyers who are not chapter 11 specialists will also understand the basic contours of the area through this product. More than 20 chapters of topics are covered, with extensive supplemental materials from actual cases.
California Law of Contracts (University of California CEB Treatise 2007, with Donna C. Looper, updated annually). A fresh and up-to-date alternative for business lawyers seeking to assure that their contracts are fully enforceable and for litigators seeking to challenge enforceability. This treatise, updated annually, includes:
- Clear and comprehensive treatment of all aspects of contract law
- Integrated discussion of current California case law and Civil Code sections
- Easilly locatable topics of interest with chapter outlines and extensive index, including:
· Capacity, consent, legality, consideration
· Offer and acceptance, formalities, electronic contracting
· Contract interpretation, modification, waiver
· Representations, warranties, covenants, conditions
· Assignment and delegation, third-party beneficiaries, joint and several obligations
· Performance or breach of contract
· Selected enforcement issues, damages, injunctive and declaratory relief
· Commercial code provisions
· Selected international issues.
Chapter: All I Ever Needed to Know about Enron I Learned in Kindergarten (and Graduate School), Enron: Corporate Fiascos & Legal Implications (Foundation Press 2004).
Articles:
California Idea Submission Law, Vol. 26, No. ___ Cal. Bus. Pract. ___ (Summer 2011).
Contractual Mechanics: Covenants, Conditions, Representations, Warranties, Guaranties, and Indemnities,Vol. 25 No. 4 Cal. Bus. Pract. 124 (Fall 2010). You may view the article in PDF format here.
Don't Mistake the Proxy for the Rule: Alter Ego Liability in Tennessee, 11 Transact 131 (2010).
Vacating Chrysler, 19 J. Bankr. Law & Pract. 123 (West 2010).
Non-Debtor Releases and Travelers v. Bailey: A Circuit Split that is Likely to Remain, 2010 Annual Survey of Bankruptcy Law 201 (West ). You may view the article in PDF format here.
Contractual Arbitration in California, 24 Cal. Bus. L. Pract. 113 (Fall 2009). You may view the article in PDF format here.
Unethical Protection? Model Rule 1.8(h) and Plan Releases of Professional Liability, 83 Am. Banker L.J. 481 (2009). You may view the article in PDF format here.
When a Defendant Goes Under, Trial, Vol. 45, No. 7, p. 46 (AAJ July 2009). You may view the article in PDF format here.
Chapter 10, XXVII, No. 2 Am. Bankr. L.J. 1 (March 2009) (with Michael St. James). You may view the article in PDF format here.
Transactional Skills Training: Contract Drafting -- the Basics, 10 Transactions 73 (Special Report 2009) (with Tina Stark).
Pedagogic Techniques -- Multidisciplinary Courses, Annotated Document Review, Collaborative Work, and Large Groups, 10 Transactions 73 (Special Report 2009) (with Athony J. Luppino and Jamison Wilcox).
Material Adverse Change Clauses, 23, No. 4 Cal. Bus. L. Pract. 1 (September 2008).
How Fast is Promptly, 23, No. 2 Cal. Bus. L. Pract. 98 (March 2008).
What Your Lender and Mortgage Broker Didn't Tell You: A Proposal for Increased Disclosure of Purchase Money Borrower Protections and their Loss on Refinance, 4 Hastings Bus. L.J. 209 (Spring 2008).
Slipping into Mootness, 2007 Norton Ann. Surv. of Bankr. Law Part 1, § 3 (West 2007). You may view the article in PDF format here.
To the Best of Whose Knowledge?, 22 Cal. Bus. L. Pract. 2 (2007). You may view the article in PDF format here.
A Taxonomy and Evaluation of Successor Liability, 6 Fla. St. U. Bus. L. Rev. 9 (2007). To view a copy of Taxonomy as originally published, click here. A copy of the 50+ jurisdiction appendix to this Taxonomy article, updated through April 15, 2011, can be accessed by clicking here.
Successor Liability in Illinois, 96 Ill. Bar. J. 2 (March 2008). You may view the article in PDF format here.
Successor Liability in New York, 79 New York Bar J. No. 3 at 22 (September 2007). PDF format here.
Successor Liability in Maryland, Volume XXXX Maryland Bar Journal No.4 (2007). You may view the article in PDF format here.
Successor Liability in Louisiana, Volume 55 LA. Bar J. 172 (2007). You may view the article in PDF format here.
Successor Liability in Pennsylvania, 78 Penn. Bar Ass'n Quarterly 160 (2007).
Successor Liability in Vermont, 33 Vermont Bar J. 40 (Spring 2007).
Successor Liability in Tennessee, 43 Tenn. Bar J. 24 (May 2007).
Successor Liability in Michigan, 2008 Michigan Bar J. Vol. 87 No. 3 (March 2007). You may view the article in PDF format here.
Successor Liability in New York, 79 New York Bar J. No. 3 at 22 (September 2007).
Chapter 11 - 201: The Intersection of Chapter 11 and UCC Article 9, XXV Am. Bankr Inst. J. (July 2006). You may view the article in PDF format here.
Best Efforts and Reasonable Efforts Clauses: Couldn't You Try Just a Little Bit Harder, 21 Cal. Bus. L. Pract. 64 (2006). You may view the article in PDF format here.
Jerry Phillips' Product Line Continuity & Successor Corporation Liability: Where Are We Twenty Years Later?, 72 Tenn. L. Rev. 777 (2005). You may view the article in PDF format here.
Where We Are and Where We Think We Are: An Empirical Examination of Bankruptcy Precedent, 28 Cal. Bank. L.J. 71 (2005). You may view the article in PDF format here.
Successor Liability in California, 20 CEB Cal. Bus. L. Pract. 50 (2005)(co-authored with Donna C. Looper). You may view the article in PDF format here.
Hijacking Chapter 11, 21 Emory Bankr. Dev. J. 1 (2005). You may view the article in PDF format here.
Boards Must Reduce Their Exposure to Creditor Suits, San Francisco Daily Journal (May 7, 2004) (co-author).
Let's Make It Official: Adding an Explicit Pre-Plan Sale Process as an Alternative Exit from Chapter 11, 40 Houston L. Rev. 1265 (2004). You may view the article in PDF format here
Bankruptcy Law and Recovery of Tort Damages, 71 Tenn. L. Rev. 81 (2003). You may view the article in PDF format here.
Selling a Business in Bankruptcy Court Without a Plan of Reorganization, 18 CEB Cal. Bus. L. Pract. 57 (Summer 2003). You may view the article in PDF format here.
Further Misinterpretation of Bankruptcy Code § 363(f): Elevating In Rem Interests and Promoting the Use of Property Law to Bankruptcy-Proof Real Estate Developments, 76 Am. Bankr. L.J. 288 (2003) ("Misinterpretations II"). To view the REAs discussed in Misinterpretations II, click here. To view Richard White's detailed analysis of the Alladin REA discussed in Misinterpretations II click here.
Misinterpreting Bankruptcy Code § 363(f) and Undermining the Chapter 11 Process, 76 Am. Bankr. L.J. 235 (2002)("Misinterpretations I"). You may view the article in PDF format here.
The Fiduciary Duties of Officers and Directors of Insolvent Corporations, 17 CEB Cal. Bus. L. Pract. 73 (Summer 2002). You may view the article in PDF format here.
Co-author, Single Asset Real Estate Under 11 U.S.C. § 362(d)(3): A Narrower Contruction Than You Might Expect, 26 Cal. Bankr. J. 130 (2002). You may view the article in PDF format here.
Intellectual Property Licenses in Bankruptcy, 16 CEB Cal. Bus. L. Pract. 33 (Spring 2001). You may view the article in PDF format here.
Qualified Settlement Funds: A Tool to Shelter Gains and Taxable Income with Payments on Account of Disputed Claims, 24 Calif. Bankr. J. 137 (1999).
Co-author, The Allowed Secured Claim: Accounting for Payment of Net Rents, 23 Cal. Bankr. J. 111 (1996).
11 U.S.C. Sections 1125(a) and 1145: Going Public Via Chapter 11, 23 Cal. Bankr. J. 3 (1996).
Financial Reporting By Chapter 11 Debtors: A Limited Critique of SOP 90-7, 5 J. Bankr. L. and Prac. 311 (1996).
New Value Questions Remain, Whatever the Decision in Bonner Mall, 112 Bankr. L. J. 383 (1995).
Claims for Attorney's Fees Under the Bankruptcy Code, 4 J. Bankr. L. and Prac. 203 (1995).
Interest on Nothing?, 9 Comm. L. Bull. 30 (1994).
Selected Professional Presentations and Service
Faculty Advisor and Coordinator, Joint JD/MBA Program, University of Tennessee.
Faculty Advisor to Transactions: The Tennessee Journal of Business Law.
Faculty Advisor to the Sports & Entertainment Law Society.
Amicus Curiae for Petitioner, Stern v. Msrahall, Case no. 10-179 (U.S. S.C. 2010).
"Transactional Drafting," Jones-Day, Palo Alto, California, december 20, 2010.
"Transactional Drafting," Miller & Martin, Chattanooga, Tennessee, July 29, 2010.
"Ethical Issues" and "363 Sales (Forms and Procedures)," Norton Bankruptcy Institute II, Las Vegas, Nevada, March 26, 2010.
"Morality and Contract Law," Spring Conference on Contracts, UNLV, Las Vegas, Nevada, February 27, 2010.
“The Present and Future of ‘One Size Fits All,’ “ panelist, American Bankruptcy Institute Chapter 11 Reform Conference, Georgetown Law Center, November 16-17, 2009.
Member, Editorial Advisory Board, Norton Journal of Bankruptcy Law and Practice.
Amicus Curiae for Respondent, Travelers Indemnity Company v. Bailey, Case no. 08-295 (U.S.S.C. 2009).
Amicus Curiae for Respondent, United Student Aid Funds Inc. v. Espinosa, Case No. 08-1134 (U.S.S.C. 2009).
Amicus Curiae for Petitioner, Ad Hoc Committee of Kenton County Bondholders v. Delta Air Lines, Inc., Case No. 09-104 (U.S.S.C 2009).
Venture Financing Transaction Workshop, DLA Piper, Palo Alto, July 22 & 23, 2008.
"Papering the Deal: Writing for Transactional Attorneys," The New Lawyer Experience: Bridging the Gap Between Preparation and Practice, Tennessee Bar Association, Knoxville, Tennessee, February 15, 2008.
Amicus counsel in support of the plaintiff/appellant in Schultz v. United States, 369 B.R. 349 (E.D.TN. 2007) and Shultz v. United States, 529 F.3d 343 (6th Cir 2008) (challenge to constitutionality of Bankruptcy Code's "means test").
Pro se appellant in Kuney v. Bean, 2008 U.S. App. Lexis 14686 (Fed. Cir 2008)(seeking to dissolve lower court protective order on grounds of over breadth).
Member, Steering Committee, Contract Drafting Conference, Emory University Transactional Practice Center, May 2-3, 2008.
"Transactional Drafting," Jones Day; Cleveland, Ohio, October 19, 2007; Chicago, Illinois, November 2, 2007; Dallas, Texas, November 9, 2007.
"Advanced Contract Drafting," DLA Piper US LLP; Chicago, Illinois, August 13, 2007.
"Drafting Concrete Contracts & Writing Better Briefs," Tennessee Bar Association Young Lawyers Division; Knoxville, Tennessee, July 11, 2007.
"Transactional Drafting," Jones Day; New York, New York, March 14, 2007.
"Transactional Drafting Workshop," Baker, Donelson, Bearman, Caldwell & Berkowitz, PC; Nashville, Tennessee, March 1, 2007.
"Recent Developments in State Law Issues Affecting Commercial Transactions that Every Bankruptcy Lawyer Ought to Know," Mid-South Commercial Law Institute, Nashville, Tenn., November 16, 2006.
"Bankruptcy Proofing Techniques: Substantive Consolidation Opinions and Bankruptcy Remote Entities," Mid-South Commercial Law Institute, Nashville, Tenn., Nov. 17, 2006.
"Contract Law and Teaching: Transactions and Litigation," panelist, SEALS, July 21, 2006.
Author, "Contract Drafting Workshop," Written Materials (TBA Four City Presentation, June 7, 2006).
Author and Publisher of "Living Off Campus: A Quick Guide to Town Living for University of Tennessee Students" (1st edition 2005, 2nd Edition 2006).
"The Nuts and Bolts of Contract Drafting," workshop speaker and "Drafting Rules, Adding Value to the Deal, and Ethical Issues in Contract Drafting," speaker, Teaching Contract Drafting Conference, Northwestern University School of Law, July 20-21, 2005.
"Transactional Training Clinic: Simulation of $50,000,000 Asset Acquisition and $40,000,000 Senior Secured Term Loan," lead instructor, Sheppard, Mullen, Richter & Hampton LLP, June 8-22 2005.
"Putting 'Business' Back Into the Education of Business Lawyers," panelist, American Bar Association, Business Law Section Spring Meeting, Nashville, Tenn., March 31, 2005.
"U.S.C. Section 363(f): What Can You Sell Free and Clear Of?," panelist, American Bar Association, Business Law Section Spring meeting, Nashville, Tennessee, March 31, 2005.
"Ethical Considerations in the Formation and Representation of Entities," panelist, Partnerships, LLCs and LLPs: Organization and Operation in Tennessee, October 8, 2005.
"Collaboration," panelist, Pedagogy to Practice: Maximizing Legal Education with Technology Conference, American Bar Association, Newark, NJ, October 15, 2004.
"Teaching Contract Drafting: The Whereases and Wherefores," presenter, Legal Writing Institute, annual conference, Seattle, Wash., July 23, 2004.
"The Intersection of Law and Business," panelist, Southeastern Association of Law Schools Annual Meeting, August 1, 2004.
"Ethical Considerations in the Formation and Representation of Entities," Panelist, Partnerships, LLCs, and LLPs: Organization and Operation in Tennessee, October 9, 2003, Knoxville, Tennessee.
"Bankruptcy and the Tort Lawyer: What You Need to Know," Damages in Tort Law Symposium speaker, University of Tennessee College of Law, April 3, 2003.
"Contract Drafting: Fundamentals, Plain English & Papering the Deal," United States Department of Energy BWXT Y-12, LLC, December 4, 2002.
"Teaching Entrepreneurship," Panelist, Southeastern Conference AALS Annual Meeting, July-August 2002.
"Combining Academic and Practical Training Through an Entrepreneurship Program," Kaufman Center for Entrepreneurial Leadership, April 2002.
"Legal Issues, Problems and Guidelines for Small Businesses: What You Don't Know Can Hurt You!," coordinator and designer of curriculum and visual aids, co-sponsored by the Knoxville Bar Association, Clayton Center for Entrepreneurial Law, the Pellissippi State Small Business Development Center, and the Knoxville Area Chamber Partnership, October 2001 and March 2002.
"Doing Business on the Internet," panelist, sponsored by the Business Law Section of the State Bar of California, June 1998.
"Attorney vs. Client: Working Toward Better Client Relations," panelist, sponsored by the Business Law Section of the State Bar of California, June 1996.
Selected Achievements and Affiliations
Carden Award for Outstanding Service to the institution, 2010, 2004.
Nominee, Chancellor's Excellence in Teaching Award, 2007, 2008.
Carden Award for Outstanding Achievement in Scholarship, 2007.
Harold C. Warner Outstanding Teacher Award, 2005.
W. Allen Separk Faculty Scholarship Award, 2003.
Research Fellow, Center for Corporate Governance, The University of Tennessee.
Member, American Bankruptcy Institute.
Member, American Bar Association.
California Bankruptcy Forum; California Bankruptcy Journal, Editor Emeritus, Editor in Chief (1999-2003), Managing Editor (1997-1998), Contributing Editor (1996).
Admitted to practice in the state courts of California and Tennessee, the Federal District Courts of both those states and of Arizona, the Federal Courts of Appeal for the Sixth and Ninth Circuits, and the Supreme Court of the United States.