Wednesday, September 14, 2016
As you know, assessment is of critical importance these days, and I am confident that in a few years most, if not all, law school casebooks will come with effective, out-of-the-box, turnkey assessments. If you believe your book is already there, or even close, please send your pitch to me at firstname.lastname@example.org. Assuming no unforeseen problems, I plan to post these pitches here, as I am sure they will be of interest to many of our readers.
Friday, June 10, 2016
I have been following Professor Angela Duckworth's work on grit for well over a year, so I was eager to read her new book, Grit: The Power of Passion and Perseverance. In fact, I can't remember the last time I bought and read a book within a few weeks of it being published.
The book is an easy read, written for a for a popular audience, and I was able to finish it in three relatively short sittings.
Below, I reflect on the book, hopefully in a balanced way.
Thesis. As may be evident from previous posts of mine, I like Duckworth's thesis - essentially, that passion and perseverance in pursuit of long-term goals are important in achieving success. Duckworth is careful to caveat her thesis, noting at hard work and passion are important, but are not the only factors that matter in achieving success. With this caveat, her thesis seems rather obvious and uninteresting.
Grit Scale. The Grit Scale Duckworth created for her studies seems easy to fake, and to her credit, she admits that it can be faked, like most self-reporting measures. Given the ability to fake the Grit Scale, I am not sure that it would be of much use in practical settings where the stakes are high (such as admissions or hiring). In one of the more interesting studies, Duckworth discusses how they gave the Grit Scale to West Point cadets before going through Beast Barracks (described as the toughest part of the four years). Supposedly, Grit scores did a nice job predicting who would stay and who would drop out. Given that the scale is easy to fake, maybe the interesting finding is not "those who actually have more grit perform better" but rather "those who think they have more grit (or are willing to lie that they have more grit) perform better.
Parenting and Teaching. As a parent, I appreciated her chapter on parenting for Grit (though she admits that these are just her thoughts, and unlike other parts of the book, the parenting chapter is lacking directly applicable scientific studies). In particular, she notes the importance of being both supportive and demanding. This is also fairly obvious, but easy to forget, hard to consistently apply, and important to remember. This instruction applies to teachers as well -- make clear that you have high expectations, but also communicate you are there to help and believe the students can meet the expectations with work. For a skeptics view, at least on the point of whether grit can be taught, see here.
Creativity, Talent, Structural Barriers: While Duckworth admits that there are other factors that contribute to success, I didn't think she made a strong case for grit being more important than creativity or talent. In fact, most of the gritty people she mentioned had certain natural advantages over many others. While grit may be needed to get things done, it seems like creativity and talent and access are all necessary and may be even more important than grit in some cases.
Anecdotes. There are a number of anecdotes in the book. The stories are less convincing than the academic studies, but the stories help illustrate her points. I especially liked the sports stories, including the ones about the UNC women's soccer team and the Seattle Seahawks. The coach of the UNC soccer team, for example, had his team memorize passages related to each team core value, and then also integrated the values into practices and games. Much better than a meaningless organization vision statement.
All in all, I think the book was worth reading, if only to stay current on some of the theories that are likely to be talked about by educators at all levels, and to inspire more passion and perseverance in general.
For a fair and thoughtful critique of Grit see here.
Friday, June 3, 2016
Next week, I will post some reflections on the contents of the book, but for now, I would like to discuss professors publishing for a popular audience. Tongue-twisting alliteration unintended.
I am thankful that Duckworth wrote this book for a popular audience rather than in a way that would target a narrow slice of academia. Even as a professor myself, I find books written for popular audience easier to digest, especially if in a different discipline. While popular press books often oversimplify, I would rather a professor author a popular press book on her studies (and studies in her field) than have a journalist attempt to explain them. Also, while a popular press book may oversimplify, professors tend to be intentional about avoiding claims that are too sweeping. Note that in this interview, like the book, Duckworth is careful to state that grit is not the only thing that contributes to success. Finally, especially when the professor has done the background academic work first, as Duckworth did in many peer-reviewed journal articles, a popular press book can reach more people and inspire change and may eventually lead to broader engagement with the underlying academic articles.
Grit, as a popular press book, has already reached a large audience. Grit was published by Scribner: An Imprint of Simon & Schuster (not a university press) and jumped into the top-5 of The New York Times best-seller list for hardcover non-fiction. Duckworth had already reached well over a million people with her TED talk, and the book allowed her to be much more nuanced than she could be in a 6 minute speech. The TED talk was a gateway to her popular press book and perhaps her popular press book with be a gateway to the academic research she cites.
One problem with engaging a large, popular audience is that the professor may lose control of her message, and people may misinterpret the findings. Duckworth looks like she is staying engaged in the conversation, however, and has, for example, written to argue against grading schools on grit.
In short, there are certainly potential problems when writing about academic topics for a popular audience, but I am glad Duckworth took on the challenge and spread her research in this way. That said, as I will discuss next week, Grit does have weaknesses, in addition to its strengths.
Monday, November 30, 2015
I never thought I would say this, but my favorite book this year is about punctuation. That’s right. Punctuation! The book is Making a Point: The Pernickety Story of English Punctuation, by David Crystal, and it's well worth reading.
It’s an enjoyable romp through the English language, with limited attention to writing in other languages as well. (I just placed something in a German English-language publication and discovered that Germans don’t know how to “correctly” use quotation marks.)
This isn’t a rule book; Crystal talks about current usage, including areas where the “experts” disagree. (Oxford comma, anyone?) But he also covers the history—how the use of punctuation has evolved over time. One of the book's recurring themes is how two functions of punctuation--clarifying the writer's meaning and providing cues to speakers--can sometimes be at odds.
The history is fascinating. I have to admit that, after reading this book and seeing what excellent writers have done in the past, it’s harder to argue for a prescriptive position. I don’t always agree with Crystal’s position on disputed issues, but his case is always cogent.
Crystal covers all the major punctuation marks: , , ;, :, . . . , ., and ( ). (Yes, I did write this sentence just to see what it would look like.) But he also covers other lesser-known punctuation marks that have fallen into disuse, as well as the use of capital letters and spacing. (I was surprised to learn that early Anglo-Saxon writing often didn’t have spacing between words.)
I’m a writing geek, so I love to read books like this. But this book isn’t just for people like me. Anyone who writes for a living or wants to write for a living—and that includes all lawyers and law students—should read this book. Making a Point is entertaining and informative, and the writing is clear. (I almost restrained the urge to write “crystal-clear.”) Check it out.
Wednesday, August 5, 2015
I am sure that many of you, like me, are deluged with email messages at this point in the year from well-meaning students taking your fall courses who ask whether a particular text--or version of a text--marked as "required" on the book list is really required. There are many ways to respond to these requests. A number of my my Facebook friends--including former students--suggest a simple response, something akin to: "What part of required do you not understand?"
While that kind of a response sometimes is very appealing (especially when I get two emails asking about this kind of thing on the same day), I have decided to use these interactions as a teaching moment--of sorts. Set forth below is a version of a message that I send, in case it is of some use to you in this or another similar context. The specific inquiry to which I am responding relates to a student's question about using a 2013 "statutory supplement" in my Fall 2015 Business Associations course.
Hey, [name of student]. Thanks for reaching out to me. This is a common question. It has an easy (although perhaps unpalatable) answer. I marked the 2015 statutory resource book (not really a supplement, but the core of our work in this course) as required for the course. I will be working from the 2015 version in and outside class. I cannot ensure that the 2013 version—or even the 2014 version—will have everything you need. While I know the authors, I do not control and am not privy to what they include and exclude every year. So, I cannot recommend your use of the 2013 version, and if you use it, you will be responsible for noting where the gaps or changes are. There may be none, but I cannot guarantee that.
I regret making students pay the money for a new paperback every year. But I have come to consider it an investment. Of course, as you already know, lawyers should never use an outdated version of the law for their research. It can be the basis of a claim of malpractice or sanctions on the basis of incompetence or a lack of diligence. So, my required use of a current version of the restatement provisions, statutes, rules, and other materials in the statutory resource book is also a way of encouraging professionally responsible, low-risk legal practice.
I will not be policing the use of outdated or other supplements—or even online versions of the statutes, rules, and other materials (which include a sample corporate charter and bylaws, for example)--instead of the assigned statutory resource book for class. So, it's all up to you. Others have used outdated or online or photocopied versions of the materials in the statutory resource book in the past and done very well in the course. But they typically put in significant work on their own to ensure they had what they needed for the exams and assignments.
See you in a few weeks. I will look forward to having you in class. You already have exhibited professionally responsible behavior in contacting me in advance and asking about the resource book. That's a great start to the semester.
Incidentally, in case you wondered, most students respond to my email thanking me and noting they will acquire the 2015 edition. Many students do not contact me at all about this issue and just go ahead and use outdated materials. Some of these non-communicative students have later admitted to me they regretted that decision.
Also, I have tried in the past to just assign online versions of the restatement provisions, statutes, and rules. There are two main disadvantages that I identified to this approach. First, I found that students did not bring the necessary legal provisions to class with them in electronic or hard-copy form or did not bring a computer to access rules that come up in class in an unplanned manner. Relatedly, it is important to note that, when the students take my open-book midterm (oral) and final (written) exams, they really need to have hard copies of the relevant rules with them, which means printing them out and collecting them in a book or folder anyway (since I do not allow electronic devices, other than ExamSoft-modified computers, in my examinations). Second, my statutory resource book has materials other than restatement, statutory, and regulatory provisions in it. If the book is not required, I must supplement the text with these additional materials, where necessary or desired.
Let me know your thoughts and share comments for improvement. Or tell me I am being too nice and should push back harder at my students. The type of response I have included above is generally consistent with my overall communication style with my students, which could be characterized as compassionate but direct. Others may have very different approaches to instructor-student communications or course objectives that make my response undesirable or even counterproductive. Please do share those kinds of reactions in the comments.
Wednesday, July 29, 2015
My friend and corporate law colleague Marco Ventoruzzo (Penn State Law and Bocconi University) recently let me know that he and several others--Pierre-Henri Conac, Gen Goto, Sebastian Mock, Mario Notari, and Arad Reisberg--have published a coauthored teaching text entitled (and focused on) Comparative Corporate Law. As someone who has taught that subject (as well as comparative and cross-border mergers and acquisitions) in the past, I have been very interested in taking a look at the book--the first of its kind, as far as I know. Luckily, I was able to grab a review copy from the publisher, West Academic Publishing (American Casebook Series), at the Southeastern Association of Law Schools (SEALS) conference, which I am attending this week. This post shares a bit about the book (based on a relatively quick examination--peeking more closely into some chapters than others) and my ideas for teaching from it.
I recommend the book and would use it in a course I would teach on the subject matter. The content is really wonderful. Nearly everything I need as a foundation for a course in comparative or cross-border corporate law is included. However, I have a few general criticisms, primarily based on my personal teaching perspective, that I will note in this post.
Friday, July 24, 2015
For a university discussion group this summer, I read William Deresiewicz's book Excellent Sheep: The Miseducation of the American Elite and the Way to a Meaningful Life (2014).
Deresiewicz, a former Yale English professor, caused quite a stir in higher education circles with his Don't Send Your Kid to the Ivy League article in the New Republic (and other articles in various outlets), which promoted Excellent Sheep pre-publication.
Deresiewicz's attack on the ivy league can be summarized as follows:
- Encourages a system that leads to resume-padding instead of authentic learning and service
- Too much focus on future financial success and not enough focus on life's big questions
- Not enough socioeconomic diversity
- Faculty preoccupied with research and do not spend enough time on teaching/service
- Risk-taking is not encouraged; error for margin for students is too small
- Coursework not rigorous enough
- Students are kept doing busy-work rather than allowed to explore
- Encourages a system that can lead to depression, isolation, etc.
Deresiewicz taught at Yale for 10 years and was supposedly denied tenure in 2008. When I found out that Deresiewicz's was denied tenure, I was tempted to write off his book as sour grapes, but I think it best to evaluate his claims on their own merit.
In my view, Deresiewicz doesn't bring much new to the conversation, and a number of his challenges to the ivy league could be brought against many colleges and universities. His proposed solution is for students to consider attending a small liberal arts college (where teaching is still a priority) or a state school (where there is much more true diversity). Deresiewicz, however, seems to underestimate the value of connections, brand, resources, and opportunities at ivy league schools.
Deresiewicz also laments the dwindling interest in the liberal arts and the increasing focus on majors that are more directly profession-focused (like economics and finance). While Deresiewicz seems to realize the risk in turning down an ivy league education and also choosing a major like History or English, he does not seem to fully realize how some students simply cannot afford those risks. While return on investment should certainly not be the only focus in choosing a school and a major, it is rightfully important to many.
Personally, I don't think the entire 242-page book was worth the read. There simply was not much new, aside from a few glimpses behind the curtain at Yale. If I had it to do over again, I probably would have just stuck with Deresiewicz's article and the responses (e.g., here and here).
Monday, July 6, 2015
I have been reading Paul Mahoney’s brilliant new book, Wasting a Crisis: Why Securities Regulation Fails (University of Chicago Press 2015). You should too.
Mahoney attacks the traditional market failure rationale for our federal securities laws. He argues that contrary to the traditional narrative, market manipulation was not rampant prior to 1933 and the securities markets were operating reasonably well. Mahoney concludes that “‘lax’ regulation was not a substantial cause of the financial problems accompanying the Great Depression and . . . most (although not all) of the subsequent regulatory changes were largely ineffective and in some cases counterproductive.”
Mahoney looks at state blue sky laws, the Securities Act, the Exchange Act, the Public Utility Holding Company Act, and, regrettably only briefly, the Investment Company Act. He concludes by discussing the Sarbanes-Oxley and Dodd-Frank Acts. He discusses the rationales for each regulation and whether those rationales are supported by the facts. Mahoney backs up his argument with a great deal of empirical research, some of which has appeared in earlier articles. Warning: Some of that discussion may be a little difficult for those without a background in regression analysis or financial economics, but you can follow Mahoney’s conclusions without understanding all of the analytical detail.
Mahoney’s work is a nice counterpoint to the narrative that prevails in most securities treatises and casebooks. Every law library should have a copy. Everyone interested in securities regulation policy, and certainly everyone who teaches a securities law course, should read this book. Whether or not you ultimately agree with Mahoney (as it happens, I generally do), his arguments must be dealt with.
Friday, June 26, 2015
A number of months ago, a friend told me about Dolly Parton's Imagination Library. The vision of the Imagination Library is "to foster a love of reading among [the] county’s preschool children and their families by providing them with the gift of a specially selected book each month."
The books are free of charge, and anyone with preschool children can sign up, regardless of family income. Our two-year old son loves getting the books in the mail.
While the Imagination Library has already served over 800,000 children, I wonder if their choice architecture is limiting their reach. Also, I wonder if their choice architecture is preventing use of the program by families who need the books the most. Currently, families can sign up online to receive the books. It is a simple process, but you need to have heard about the program, need to have internet access, and need to be able to fill out the sign-up questions.
A nudge, such as an opt-out form (through the mail, or, if allowed, at the hospital) might allow the Imagination Library to reach a greater number of children. (If Gerber Life Insurance knows when we have a baby, I am sure the Imagination Library could find out). I doubt many families would opt out of the Imagination Library's program. Who would turn down free books? Perhaps, however, the program is purposely set up with a few hurdles because of limited resources.
The partners of Imagination Library include Penguin Group USA. I imagine that Penguin probably sees this partnership as part marketing and part corporate social responsibility. In any event, we have really enjoyed the program.
Friday, June 19, 2015
The book is much more “popular press” than academic, as should be clear from the splashy subtitle “liberating the heroic spirit of business.” There is a bit of academic influence in the appendix and notes, but it is mostly social business advocacy and story telling. In fact, the authors state that the primary purpose of the book “is to inspire the creation of more conscious businesses: businesses galvanized by higher purposes that serve and align the interests of all their major stakeholders.” (pg. 8). The book is interesting, passionate, and may accomplish its primary purpose.
The authors paint a compelling picture of Whole Foods Market and similar companies like Trader Joe's, The Container Store, Costco, and Southwest Airlines. These companies appear to take a long-term view and consider what is best for all their stakeholders. I would have appreciated, however, more attention to the struggles the companies must have faced in attempting to satisfy all of their stakeholders. After finishing the book, I was left wishing the authors would have spent more time discussing how to make decisions in situations where certain stakeholder interests irreconcilably conflict.
I may have more to say about this book in future posts, but as someone who has been researching in the social business area for a few years, I continue to be amazed at the proliferation of terms. The authors describe four tenants of their term “conscious capitalism”: (1) Higher Purpose (beyond just generating profits); (2) Stakeholder Integration (“optimizing value creation for all of them”); (3) Conscious Leadership (leaders “motivated primarily by service to the firm’s higher purpose and creating and creating value for all stakeholders.”); (4) Conscious Culture and Management (culture and management centering around traits like “trust, accountability, transparency, integrity, loyalty, egalitarianism, fairness, personal growth, and love and care.) (pg. 32-35)
The authors try to differentiate their term of “conscious capitalism” from similar terms, as discussed below. While some of the distinctions make sense, I wish that these various social business movements would agree on a common vocabulary and work together more consistently. Unfortunately and ironically, many associated with the social business movements seem especially territorial. Perhaps, the lack of focus on financial returns causes some to seek personal returns in the form of recognition and influence. Quotes in the bullet points below come from pages 38, 291-97 in the book.
- Corporate social responsibility. The authors note that CSR is often “grafted onto traditional business model, usually as a separate department or part of public relations," but for Conscious Capitalism “[s]ocial responsibility is at the core of the business.” The authors are not the first to note this difference between CSR and the more recent social business movements, and I think it is a fair distinction, at least in some cases.
- Natural Capitalism. According to the authors, “Conscious Capitalism included the valuable insights that natural capitalism offers about the environment and transcends them with a more comprehensive view of the entire business and economic system.” The authors seem to suggest that their term is more holistic, not merely focused on the environment, and more focused on human ingenuity than simply preserving the environment.
- Triple Bottom Line. The authors seem to think that Conscious Capitalism has a more inclusive view of stakeholders than TBL’s “people, profit, planet.” I don’t think the authors make their case for this distinction, failing to note stakeholders that don’t fall in one of TBL’s three buckets. The authors then note that their theory pays more attention to “purpose, leadership, management, and culture.” I also think this is stretching for distinctions; most of the TBL proponents I know recognize the importance of “purpose, leadership, management, and culture.” The authors admit that the TBL movement is "a fellow traveler," but I think TBL and Conscious Capitalism are roughly synonymous.
- Shared-Value Capitalism. SVC, championed by Michael Porter and Mark Kramer, focuses on creating economic value for shareholders and all of society. Conscious Capitalism, the authors claim, does not only focus on economic value like SVC, but expands to human values and includes “emotional and spiritual motivators” lacking with SVC.
- Creative Capitalism. Bill Gates popularized this term in 2008 at the World Economic Forum, claiming that certain companies can use variable pricing to make products affordable to those at the “base of the pyramid” and still make a profit. The authors claim Creative Capitalism seems like an “add on” similar to CSR, only applies certain companies, and over-focuses on the reputational benefits, rather than changing the core business purpose.
- B Corporations. The authors do not seem optimistic about “[certified] B corporations” which they unfortunately use interchangeably with “benefit corporations,” even though the two terms are distinct. The main reason the authors offer for their pessimism toward B corporations is that “B corporations appear to violate the important principle that owners [shareholders] should ultimately control the corporation.” Most legal readers will notice problems with that statement. First, shareholders don’t control corporations, boards of directors do (see, e.g., DGCL 141(a)). Second, to the extent the authors are talking about aspects of corporate governance like the shareholders’ ability to elect the directors and bring derivative suits, those powers remain for shareholders of both certified B corporations and benefit corporations. Giving the authors (neither of whom are legally trained) the benefit of the doubt – perhaps they are talking about the deprioritization of shareholders in the benefit corporation statutes (shareholders are simply one of many stakeholders that the board must consider in its decision making). The authors seem concerned that shareholders, the most vulnerable of the stakeholders (according to them), will be relatively unprotected. This is a fairly common concern, but the Conscious Capitalism model seems to deprioritize shareholders as well, and even in traditional corporate law, the business judgment rule provides significant protection to the board of directors. Delaware law does give shareholders more power in the M&A context, but benefit corporations and corporations committed to Conscious Capitalism that are incorporated in a constituency statute state seem like they would operate similarly, even in the M&A context. In short, the authors do not clearly express a strong grasp of the benefit corporation statutes, and throughout the book the authors actually seem to advocate operating corporations in line with the benefit corporation statutes (considering all stakeholders in decisions).
While I am a bit critical in some of my comments above, I did appreciate learning more about Whole Foods Market and similar companies. The companies discussed are some of my favorite companies and are certainly making the world better for many of their stakeholders. The book also made a number of claims that spurred additional thinking, for which I am grateful, and which made reading the book worthwhile.
Friday, May 22, 2015
Each summer, I try to read a few books related to work and a few books not related to work.
This summer, I have tagged Tamar Frankel's Trust and Honesty: America's Business Culture at a Crossroad and Flannery O'Connor's Everything That Rises Must Converge.
Open to other reading suggestions in the comments. I have a pretty deep "want to read" list, but am always looking for more additions.
I am also listening to a Yale online course called Philosophy and the Science of Human Nature, taught by Tamar Gendler. I am already more than halfway finished with the course - mostly listening in the car or while doing various chores. While I did not take any Philosophy courses in college, much of the material is more familiar than I would have thought. These open courses have been fun, and I am open to suggestions of other good courses.
Monday, April 27, 2015
Many of you have probably heard of bitcoin, the private digital currency that some mainstream merchants are now accepting. (Rand Paul recently became the first presidential candidate to accept donations in bitcoin.)
Bitcoin was developed by a software programmer who used the pseudonym Satoshi Nakamoto. It is built on cryptography software known as the blockchain, which both issues the currency and authenticates transactions using it.
If you haven’t heard of bitcoin or you don’t know much about it, I strongly recommend an interesting, informative new book : The Age of Cryptocurrency: How Bitcoin and Digital Money are Challenging the Global Economic Order, by Paul Vigna and Michael J. Casey.
Vigna and Casey are reporters for the Wall Street Journal. I think they're a little too optimistic about the future of digital currency, but their book is an excellent non-technical introduction to the bitcoin phenomenon and the blockchain software that underlies it. The book isn’t limited to bitcoin; Vigna and Casey talk about other digital currency. They also discuss other potential applications for the blockchain software, such as gambling, self-enforcing “smart” contracts, and currency exchange.
The book’s discussion of regulatory issues is limited. If you’re looking for a discussion of the legal issues, I suggest you look elsewhere. But the book is a very good introduction to digital currency and how it works.
Monday, February 23, 2015
I’m a big fan of Ernest Hemingway. I love his writing style. I’m currently rereading all of his novels, and I ran across a quote that I think every lawyer and law professor should read and take to heart.
I don’t think Hemingway was a fan of lawyers. The only lengthy portrayal of a lawyer in his fiction is in To Have and Have Not, and that lawyer is a crooked, double-crossing sleaze. I’m reasonably sure he never wrote or said anything specifically about legal writing. But the following passage from The Garden of Eden captures the essence of good legal writing:
Be careful, he said to himself, it is all very well for you to write simply and the simpler the better. But do not start to think so damned simply. Know how complicated it is and then state it simply.
No legal writing instructor could have said it better than Papa.
Friday, January 30, 2015
I recently purchased and read two Cass Sunstein (Harvard) books: Simpler: The Future of Government and Wiser: Getting Beyond GroupThink to Make Groups Smarter (with Reid Hastie (Chicago))
Cass Sunstein is a enjoyable writer to read, and Simpler was an easy, relatively short read (though he admits that his editor prompted the cutting of 30,000 words from the original manuscript). I may do a separate post on Wiser at a later date.
Simpler provides an inside look at Cass Sunstein's time at the head of the Office of Information and Regulatory Affairs ("OIRA") from 2009-2012. Supposedly, OIRA was created by the Paperwork Reduction Act in 1980. OIRA plays an important role in overseeing federal regulation.
A few random thoughts about Simpler:
- If you have read Sunstein's earlier work, Kahneman (Princeton), and Ariely (Duke) much of Simpler will be familiar behavioral economics;
- Sunstein's political confirmation process sounds absolutely awful. I wonder how many qualified potential civil servants are scared away by processes like this;
- The Food Plate (below) is much simpler than the Food Pyramid I grew up with;
- Sunstein reminded me that sometimes rule-makers (including professors - e.g. with our syllabi) can become experts in rule systems, and not realize how complex their rules may seem to outsiders;
- The impact of the complex regulation is felt by many, including by small businesses (and by all of us during tax season);
- Sunstein admits that there is a tenancy to regulate from hunches, anecdotes, and to please (or not upset) special interests, but he claims he tried to favor statistics, cost-benefit analysis, randomize controlled trials, and public comments;
- Government has a long way to go before it gets "simple." Sunstein's biggest challenge was explaining the ACA and Dodd-Frank in the context of this book; I don't think he rose to this challenge and he did not even try very hard. He pointed to a few simple parts of the complex laws, but then concluded by saying "Rome was not built in a day."
For those who are interested, Cass Sunstein's talk on Simpler at University of Chicago is here.
Thursday, January 22, 2015
I have just returned from Dublin, which may be one of my new favorite cities. For the fifth year in a row, I have had the pleasure of participating as a mentor in the LawWithoutWalls (“LWOW”) program run by University of Miami with sponsorship from the Eversheds law firm. LWOW describes itself as follows:
LawWithoutWalls, devised and led by Michele DeStefano, is a part-virtual, global, multi-disciplinary collaboratory that focuses on tackling the cutting edge issues at the intersection of law, business, technology, and innovation. LawWithoutWalls mission is to accelerate innovation in legal education and practice at the same time. We collaborate with 30 law and business schools and over 450 academics, students, technologists, venture capitalists, entrepreneurs, business professionals, and lawyers from around the world. We seek to change how today’s lawyers approach their practice and how tomorrow’s lawyers are educated and, in so doing, sharpen the skills needed to meet the challenges posed by the economic pressures, technologization, and globalization of the international legal market. We seek to create the future of law, today. Utilizing a blend of virtual and in-person techniques, LawWithoutWalls offers six initiatives: LWOW Student Offerings,LWOW Live, LWOW INC., and LWOW Xed.
I first joined the program as a practitioner mentor and have now served as an academic mentor for two years. Each team has students from law or business school who develop a project of worth addressing a problem in legal education or the legal profession. Mentors include an academic, a practitioner, an entrepreneur, and an LWOW alum.
In the LWOW Live version, the students and mentors meet for the first time in a foreign city (hence the trip to Dublin) and then never see each other in person again until the Conposium, a Shark-Tank like competition in April at the University of Miami, where they present their solution to a venture capitalist, academic, and practitioner in front of a live and virtual audience.
Over the period of a few months the students and mentors, who are all in different cities, work together and meet virtually. Students also attend mandatory weekly thought leader sessions. Past topics have included developments in legal practice around the world and the necessity of a business plan. For many law students, this brings what they learned in Professional Responsibility and Business Associations classes to life. At the Dublin kickoff, audience members watched actual live pitches to venture capitalists from three startups, learned about emotional intelligence and networking from internationally-renowned experts, and started brainstorming on mini projects of worth.
This year, I am coaching a virtual LWOW Compliance team working on a problem submitted by the Ethics Resource Center. My students attend school in London and Hamburg but hail from India and Singapore. My co-mentors include attorneys from Dentons and Holland and Knight. The winner of the LWOW Compliance competition will present their solution to the Ethics Resource Center in front of hundreds of compliance officers. In past years, I have had students in LWOW Live from Brazil, Israel, China, the US, South Africa, and Spain and mentees who served as in-house counsel or who were themselves start-up entrepreneurs or investors. Representatives from the firms that are disrupting the legal profession such as Legal Zoom serve as mentors to teams as well. In the past students have read books by Richard Susskind, who provides a somewhat pessimistic view of the future of the legal profession, but a view that students and mentors should hear.
As I sat through the conference, I remembered some of the takeaways from the AALS sessions in Washington in early January. The theme of that conference was “Legal Education at the Crossroads.” Speakers explained that firms and clients are telling the schools that they need graduates with skills and experience in project management, technology, international exposure, business acumen, emotional intelligence, leadership, and working in teams. Law schools on average don’t stress those skills but LWOW does. Just today, LWOW’s team members were described as "lawyers with solutions." I agree and I’m proud to be involved in shaping those solutions.
Monday, January 5, 2015
Last week, I gave you a list of the best fiction books I read in 2014. Here’s a list of the best non-law, non-fiction I read in 2014. I hope you find something that interests you. I read much more non-fiction than fiction, so this list is a little longer. As with my list of fiction, they’re in no particular order.
1. Rose George, Ninety Percent of Everything: Inside Shipping, the Invisible Industry that Puts Clothes on Your Back, Gas in Your Car, and Food on Your Plate. An extremely well-written look at the global shipping industry—not the FedEx and UPS type of shipping, but actual ships. The author traveled over 9,000 miles on a container ship. The book discusses that voyage, interlaced with a boatload of material (pun intended) about the history of shipping, the regulation of shipping, shipwrecks, piracy, and a number of other subjects.
2. Rich Cohen, Monsters: The 1985 Chicago Bears and the Wild Heart of Football. I’m neither a Chicago Bears fan nor a Mike Ditka fan, but this was an interesting book. For those who are young and familiar with the current Bears, yes, the Bears actually won back in 1985. Cohen covers more than just that 1985 team. The book looks at the history of the team back to the early days of the NFL and also the aftermath of the 1985 championship—what happened to the team and the players afterwards.
3. Adam Minter, Junkyard Planet: Travels in the Billion-Dollar Trash Trade. A look at trash and recycling. Recycling makes more sense economically than I thought; apparently, much of our recycled materials make their way to China for use in Chinese manufacturing. I never knew that trash could be so interesting.
4. William Easterly, The Tyranny of Experts: Economists, Dictators, and the Forgotten Rights of the Poor. Easterly, an economist at N.Y.U., discusses anti-poverty programs and their effect on the third world. He argues that the technical solutions proposed by experts haven’t worked and that the real key to development is bottom-up: giving poor people economic freedom. I previously recommended this book here. My co-blogger Haskell Murray reviews it here.
5. Jang Jin-Sung, Dear Leader: Poet, Spy, Escapee—A Look Inside North Korea. The author worked in the propaganda arm of the North Korean government and was honored by Kim Jong-Il for his epic poetry. This book is the story of his escape from North Korea, but also an account of life among the privileged in Pyongyang.
6. Louisa Lim, The People’s Republic of Amnesia: Tiananmen Revisited. An amazing account of how China has been able to recast, and even erase, from its history the events in Tiananmen Square in 1989. The scary part is how they have used nationalism to supplant the yearnings for freedom that prompted Tiananmen.
7. Mark Miodownik, Stuff Matters: Exploring the Marvelous Materials that Shape Our Man-Made World. An introduction to how materials are made and how they’re put together, down to the atomic level. He discusses for instance, why diamonds and graphite are so incredibly different, even though they’re both carbon-based. For those who have a heavy scientific background, there won’t be much new here, but he explains the science in ways that a non-scientist like me can understand.
8. Jenny Lawson, Let’s Pretend This Never Happened: A Mostly True Memoir. A hilarious autobiography of a Texas woman who now writes a blog at TheBloggess.com. Parts of it made my literally laugh at loud. I was constantly reading parts of the book to my wife.
9. Ben Macintyre, A Spy among Friends: Kim Philby and the Great Betrayal. The story of Kim Philby, perhaps the best-known Russian spy ever. An interesting look at the good-old-boys’ network that was British intelligence at the time and their unwillingness to believe that one of their own would actually betray them.
10. Steven Pinker, The Sense of Style: The Thinking Person’s Guide to Writing in the 21st Century. I tend to be a grammar prescriptivist; Pinker is not. I’m a big fan of Strunk & White; Pinker is not. But I nevertheless enjoyed this guide to grammar, punctuation, and sentence and paragraph structure. Pinker’s suggestions are sensible. He also explains why things should be written as he suggests and why grammar and structure matter.
11. Hampton Sides, In the Kingdom of Ice: The Grand and Terrible Polar Voyage of the U.S.S. Jeannette. An account of an attempt to sail to the North Pole from the Pacific Ocean and on to the Atlantic. At the time, many people thought that there was a great polar sea beyond the ice. The Jeannette was stuck in the ice for two years before it sank and the crew had to try to make their way through the ice and eventually overland through Russia.
12. Ian Leslie, Curious: The Desire to Know and Why Your Future Depends on It. I have already blogged about this one. See here.
13. Kim Zetter, Countdown to Zero Day: Stuxnet and the Launch of the World’s First Digital Weapon. The story of the Stuxnet computer worm which someone, apparently the U.S. government, used to disrupt Iran’s uranium enrichment program. Zetter tells the story primarily from the viewpoint of the computer experts who discovered and then unraveled the virus. He also discusses the ethical and practical implications. Among other things, what’s the risk to “us” now that we’ve unleashed this weapon on someone else?
Tuesday, December 30, 2014
This week I received the notice below from Professor Jason Gordon. Professor Gordon is a legal studies and management professor at Georgia Gwinnett College, School of Business. As explained below, he is offering copies of two entrepreneurship books that he thought might be useful to BLPB readers.
I recently published two texts entitled Business Plans for Growth-Based Ventures and Understanding Business Entities for Entrepreneurs and Managers. These books are designed for use by clinical law professors and as a supplement in entrepreneurship courses. The second text concerns entity selection considerations, but includes entity funding and conversion considerations and specific considerations for startup ventures.
The texts also contain supplemental electronic material available for free at TheBusinessProfessor.com.
If any of you would like a free copy of either text in Amazon e-book format, please send me your email address at jgordon10 [at] ggc [dot] edu.
A preview of the Business Plans E-Book is available here.
A preview of the Business Entities E-Book is available here.
Monday, December 29, 2014
Believe it or not, I and the other editors of the Business Law Prof Blog don't spend all of our time reading and thinking about business law. I assume none of you do, either, so I thought you might be interested in a list of the best non-law books I have run across this year.
I originally planned to put them all in a single post, but I read a number of very good books in 2014, so I decided to divide the list into two posts. Today, fiction. Next week, non-fiction.
I’m limiting both lists to books published relatively recently, so you don’t have to wade through a list of old science fiction or Thomas Hardy novels, no matter how excellent I thought they were when I reread them this year.
Except for the first book, they’re in no real order.
1. Anthony Doerr, All the Light We Cannot See. If you read only one book on this list, this should be it. This is the best new novel I have read in some time. It centers on a bright young German boy and a blind French girl in the period prior to and during World War II. It’s hard to explain the story in a few words, but I think it’s an absolutely brilliant book.
2. Chang-Rae Lee, On Such a Full Sea. The main character searches for the father of her unborn child in a dystopian future. The book has no real conclusion, and I usually don’t like that, but I’m willing to excuse that, given the excellent writing.
3. Rachel Joyce, Perfect. This brilliant novel has two alternating stories: one about a young boy who becomes obsessed when a friend tells him that two extra seconds will be added to clocks; the other about a disturbed 50-year-old supermarket worker. Keep reading: she eventually ties the two story lines together.
4. Andy Weir, The Martian. An astronaut is stranded on Mars without adequate supplies after his colleagues leave, thinking he’s dead. A solid piece of science fiction.
5. Karen Russell, Sleep Donation. A novella about a sickness that keeps people from sleeping. They use a machine to borrow sleep from sleep donors.
6. Joshua Ferris, To Rise Again at a Decent Hour. I’m not a huge Joshua Ferris fan, but I liked this one. A dentist discovers that someone is posting online in his name about a lost Middle Eastern group and a religion whose primary belief is a doubt that God exists.
7. Jo Walton, My Real Children. I really enjoy Jo Walton’s science fiction, and this book was not an exception. It’s about a woman with Alzheimer’s who remembers two very distinct lives—diverging when she said either “yes” or “no” to a marriage proposal.
8. Matthew Thomas, We are Not Ourselves. A bittersweet first novel about a woman and her families—the family she grew up with and, later, her husband and son. A story of regret and uncertainty, it's sad and depressing, but extremely good.
9. Bill Roorbach, The Remedy for Love. A fascinating love(?) story involving a small-town lawyer stuck in a tiny, isolated cabin with a disturbed woman during a once-a-century blizzard. A charming story, expertly told.
Monday, December 22, 2014
My co-blogger Haskell Murray had an interesting post last month on curiosity and obedience. He wrote about the natural curiosity of children: “As a professor, I wish I could bottle my son’s curiosity and feed it to my students.” But what exactly is curiosity and how exactly do we encourage it in law students?
I recently read an excellent book on curiosity: Curious: The Desire to Know and Why Your Future Depends on It, by Ian Leslie. The book has a lot of interesting things to say about education, parenting, life-long learning, creativity, and innovation. I couldn’t possibly do it justice here. But, if you’re interested in learning and education, legal or otherwise, I strongly recommend it.
Leslie makes a distinction between diversive curiosity and epistemic curiosity. Diversive curiosity is shallow—wanting to know a particular piece of information. When I check on IMDb for the name of the actress in the movie I’m watching, that’s diversive curiosity. Epistemic curiosity, what we really want to encourage in our kids and our students, is the quest for knowledge and understanding, the desire to address the mysteries that don’t have readily ascertainable answers.
Google is mostly about diversive curiosity, finding answers. Google is great at that, but not so good at promoting epistemic curiosity. In fact, Leslie believes that Google inhibits our epistemic curiosity, and thus stifles deep learning.
Why remember information, or teach students information, that we can easily look up on Google? The answer, according to Leslie, is that having those “mere facts” in our long-term memories promotes innovation and creativity. Creativity results from those various facts serendipitously bouncing into each other inside our heads. Instead of deadening curiosity, as many people argue, learning those facts actually promotes epistemic curiosity. The more we know, the more easily we can understand how it all fits together and (the essence of innovation) try to fit it together in different ways. Leslie argues that deep thinking is becoming a lost art as more and more people rely on their machines for information.
I'm still working through what all this means for my teaching, but the book is definitely worth reading.
Monday, November 3, 2014
On Monday, The University of Tennessee (UT) College of Law hosted Larry Cunningham to talk about his book, Berkshire Beyond Buffett: The Enduring Value of Values, which he previewed with us here on the BLPB a few months ago in a series of posts (here, here, and here). As you may recall, the book focuses on corporate culture and succession planning at Berkshire Hathaway. Joining Larry at the book session was UT College of Law alumnus James L. (Jim) Clayton, Chairman and principal shareholder of Clayton Bank and the founder of Clayton Homes, one of the Berkshire Hathaway subsidiaries featured in the book. The impromptu conversation between Larry and Jim was an incredible part of the event (although Larry's prepared presentation on the book also was great).
As part of the event, Larry and Jim answered a variety of audience questions. Included among them was a question from UT College of Law Dean Doug Blaze on the role of lawyers in management, transactions, and entrepreneurialism. As part of Jim Clayton's response, he noted the value of preventative lawyering--advising businesses to keep them out of trouble. I was so glad, as a business law advisor, to hear him say that!
Following on that, given that (a) Larry's book focuses on the factors influencing succession planning, (b) I am teaching the Disney case to my Business Associations students this week, and (c) the Disney case is about . . . well . . . failed succession and executive compensation, I asked about management compensation in the context of succession planning at Berkshire Hathaway. Both Larry and Jim (whose son Kevin is President and Chief Executive Officer of Clayton Homes) were clear that Warren Buffett is an exacting manager, but that he believes in paying his portfolio company managers well. Of course, the precise nature of the compensation arrangements of those portfolio firm executives (unlike Michael Ovitz's compensation arrangements at issue in the Disney case) are not a matter of public record. But given the markedly different contexts, I assume the arrangements are very different . . . .
As I approach discussing the Disney case once again in the classroom, I am (as always) looking for new angles, new insights to share with the class (in addition to the core fiduciary duty doctrine). One I will share this year is Jim Clayton's advice about preventative lawyering. What could lawyers have done to reduce the likelihood of controversy and litigation? I have some thoughts and will develop others in the next 24 hours. Leave your thoughts here, if you have any . . . .