January 04, 2012
Lowell Milken Institute Law Teaching Fellowship
The Lowell Milken Institute for Business Law and Policy at UCLA School of Law is accepting applications for the Lowell Milken Institute Law Teaching Fellowship. The Institute describes the fellowship as follows:
This fellowship is a full-time, year-round, one or two academic-year position (approximately July 2012 through June 2013 or June 2014). The position involves law teaching, legal and policy research and writing, preparing to go on the law teaching market, and assisting with organizing projects such as conferences and workshops, and teaching. No degree will be offered as part of the Fellowship program.
Fellowship candidates must hold a JD degree from an ABA accredited law school and be committed to a career of law teaching and scholarship in the field of business law and policy. Applicants should have demonstrated an outstanding aptitude for independent legal research, preferably through research and/or writing as a law student or through exceptional legal experience after law school. Law Teaching Fellowship candidates must have strong academic records that will make them highly competitive for law teaching jobs.
Applications are due by March 1, 2012. More information about the Institute and on the fellowship can be found here.
-- Eric C. Chaffee
December 19, 2011
Assessment, Teaching, and Memory: More to Think About
James M. Lang's article, Teaching and Human Memory, Part 2, is now available at the Chronicle of Higher Education website. I wrote about Part 1 on November 28, 2011 (here), focusing on the article's point that information about how best to teach students varies widely and often conflicts. For this second article, Dr. Lang discussed some teaching and learning research with Dr. Michelle Miller of Northern Arizona University. Dr. Lang explains:
[M]emory matters, even for those of us teaching the most complex cognitive skills we can imagine. Given its importance to our work in higher education, I sought help from [Dr. Michelle] Miller, first of all, in thinking about how her research might apply to the design and presentation of college courses.
"The mind isn't a sponge that absorbs whatever disjointed information we happen to pick up through our senses," she said. "Rather, we acquire information from the environment that we (a) understand, and (b) care about. It follows that when we design our courses, we should start by asking ourselves how we will capture and direct students' attention, and then plan how we will frame the information in a meaningful, interpretable way. This is different from the traditional approach of starting with the material to be covered and how we plan to spread it out over the course of the semester."
As law schools are now increasingly being asked to consider learning outcomes assessments of law students (and often resisting that request), it's worth knowing what the research says in this area. I'm not one who believes that all law schools are broken or that there is one way to teach anything. Different styles and processes can and should be used to achieve different goals. Students should have different kinds of courses, different assessment methods, and different expectations from year to year and class to class.
It's worth knowing, though, that Dr. Miller's research does not suggest "that certain types of assignments or exams were better than others." Instead, she says, "frequency is more important than format" with regard to assessment. Dr. Lang builds on this:
[The research thus] suggests that we should be testing, quizzing, and assigning homework to our students as frequently as possible—or perhaps as frequently as we can handle the challenge of grading all of that work. A course with a dozen low-stakes exams or quizzes, and plenty of homework, will do a much better job of promoting retention of course material than a class with only two or three high-stakes exams.
I use multiple quizzes and exercises in two of my courses (and it does make grading rather onerous), but I still use one, all-inclusive final exam to end the semester for my Business Associations courses. This is planned -- I think the value of seeing how interconnected agency, partnership and corporate concepts are as a whole, as opposed to viewing them discretely, has value. I also think there is value in preparing students for the bar exam by replicating that process to some degree, because passing the bar is still a threshold requirement to practicing law (barring a few exceptions).
I do use exercises and problems in my BA courses, too, but they are not formally assessed in any way. That's not all bad, either, as it allows students to get a sense of where they are without having the problems impact their grade. Of course, that presumes they care and are engaging in both the exercise and the self-assessment opportunity that follows. My experience suggests that many are and many are not.
Ultimately, as I consider these suggestions as they connect to my courses, it's clear to me I can do better. One of the challenges of making changes to a course to "do better" is that it comes with a risk that I will do something worse. I think it's worth the risk, though, because I want to be a better teacher. And my students deserve that. To that end, I have always found the great basketball coach John Wooden's advice to be especially insightful and motivating on this front. He's was a teacher first and a coach second, just as I strive to be a teacher first and law professor (with all that encompasses) second. Here are a few of my favorite Coach Wooden quotes:
"If you're not making mistakes, then you're not doing anything. I'm positive that a doer makes mistakes."
"Failure is not fatal, but failure to change might be."
"Don't measure yourself by what you have accomplished, but by what you should have accomplished with your ability."
December 14, 2011
Quick Review of Rudolph H. Weingartner's Fitting Form to Function
As a new Associate Dean for Academic Affairs & Research, I've taken on a number of administative functions this year. I'm still not at all clear that the administrative life is the one for me, especially at this point in my academic career. Having had a career before becoming a lawyer, I'm probably more comfortable with budgets, hiring and firing, and office politics than some. Of course, that doesn't mean I necessarily like it. After all, I did leave that career to go to law school.
Nonetheless, I agreed to take the position for a little while, and I'm committed to doing it as well as I can. Part of that has meant learning as much as I can about academic leadership and how academic institutions work. This is no easy task. Schools have very different sizes, characters, and resources, and this can have a significant impact on how to interpret even some of the "universal truths" of academic life.
Further, while I have found real value in reading some of the materials from leaders in academic adminstration, I also sometimes find the tone and tenor of how administrators describe faculty both patronizing and unnecesarily polarizing, even if the description is largely correct. (See, e.g., Stanley Fish). Some of this may be "youthful" idealism on my part, but I don't think the relationship between faculty and administration needs to adversarial. At least, not most of the time. I know that there are some faculty members who act like petulant children, but treating all faculty members as though they act that way means you are likely to facilitate similar behavior from others less inclined to do so.
Recently, I've been reading Rudolph H. Weingartner's Fitting Form to Function. It's a managable read that provides an nice "Primer on the Organization of Academic Insititutions." There's not a lot groundbreaking here, and yet I notice that an awful lot of people (from educators to administrators to legislators) could use the information contained in the book. Even if it's all elementary information, it's clear that information is not being put to good use in a number of settings.
The book also nicely provides a list of maxims to distill and "elevate" some "general truths" derived from the author's experience. Here are some that I find useful:
Maxim 6: If the organizational chart is the right one, and micromanagement exists, either the supervisor or the supervised is the wrong person for the slot.
Maxim 11: Committees whose mission is to perform routine and ongoing functions are ill suited to tasks that require them to move outside the framework within which they normally operate.
Maxim 15: An office that lacks goals of its own will tend to give priority to getting the process right over getting the job done.
Maxim 21: Refrain from making rules that make normal business more cumbersome merely in order to prevent offense that might be committed on rare occasions.
Whether you are an administator, looking for ways to help make a law (or other) school a little more efficient, or curious about why some things in academics work the way they do, this book is worth a look.
October 16, 2011
"Poker for Law Students" Course Update
I've previously written about my desire to teach a "Poker for Law Students" course (here). To that end, I am always on the lookout for supporting documentation and course materials (as I've also previously blogged about here). So, just in case this sort of thing interests you I thought I'd pass on a couple of additional items I've come across recently:
1. A PokerNews item on "Poker Players and Entrepreneurs: A Compatible Match"
September 09, 2011
Empirical Evidence on the Impact of Blogging
David McKenzie & Berk Ozler have posted The Impact of Economics Blogs on SSRN. Here's the abstract:
There is a proliferation of economics blogs, with increasing numbers of economists attracting large numbers of readers, yet little is known about the impact of this new medium. Using a variety of experimental and non-experimental techniques, this study quantifies some of their effects. First, links from blogs cause a striking increase in the number of abstract views and downloads of economics papers. Second, blogging raises the profile of the blogger (and his or her institution) and boosts their reputation above economists with similar publication records. Finally, a blog can transform attitudes about some of the topics it covers.
I'm curious if this holds true for Business Law Bloggers, too. My suspicion is that the findings would hold true across disciplines or at least many disciplines. As the authors explain:
This evidence is . . . consistent with the view that blogging helps build prestige and recognition in the profession, with bloggers being more likely to be admired or respected than other academics of similar (or in many cases better) publication records. This is of course only a correlation, and there are several caveats to consider. First, to the extent that blogging serves to increase the RePEc ratings by increasing downloads (as seen in the previous section) and citations, the observed correlation will be a lower bound on the causal impact of blogging. However, if bloggers are also more likely to be engaged in other activities of a public intellectual, such as media appearances, writing books etc., and if these don't all arise directly as a result of blogging, the estimates will conflate the impact of blogging with the impacts of these other activities, thereby overstating the impact of blogs. Nevertheless, given the large magnitude of the coefficient observed, it does not seem likely that all of the observed impact of blogging just reflects omitted variables, and therefore we view this evidence as strongly suggesting that blogging increases the influence, respect, or public image of the blogger. [footnote omitted]
There is always the risk a prolific blogger will get a greater (and disproportionate) share of recognition for being more "out there" more often than a non-blogging colleague. That said, a consistent, if not prolific, blogger who has a similar publication record may be more connected to current events in his or her profession. And blogging demonstrates a willingness and ability to share opinions (for better or worse).
Blogging can't, and shouldn't, replace other forms of scholarship. But in addition to tradtional scholarship, it adds to the overall depth, and especially breadth, of knowledge. At least, it does for me. I truly believe my scholarship and my teaching have improved because of blogging, even if, sometimes, it feels like a lot of "extra" work. As long as it is making me better at what I do, it's work I need to do.
September 05, 2011
Editors Wanted: The Business Lawyer
In case you are interested, the ABA publication, The Business Lawyer, is seeking editors. Here's the call for applications:
The Business Lawyer Seeks Editors
The Business Lawyer (TBL) plans to appoint at least one additional editor beginning with Volume 67. The responsibilities of an editor will be to:
(i) edit approximately sixty manuscript pages of each of the four issues that TBL publishes in each volume;
(ii) ensure that each statement of fact has an accurate citation that supports it;
(iii) conform all citations to the Blue Book; and
(iv) make sure that manuscripts satisfy TBL Author Guidelines.
Over the course of a volume, each editor should expect to work on a combination of articles, reports, and surveys that are published in TBL.
Since Volume 64, Professor Gregory Duhl of the William Mitchell College of Law has been responsible for all style editing, cite-checking, and Blue-Booking of TBL. Professor Duhl is the current Associate Editor-in-Chief, and the editors would work in collaboration with him, the Editor-in-Chief, who rotates yearly, and the Production Manager, Diane Babal, to ensure that TBL maintains its high quality and timeliness. The editors would also work closely with the Associate Editor-in-Chief to update the TBL Author Guidelines to maintain consistency in the journal.
TBL seeks editors from all business law disciplines, who have experience editing an academic publication, a keen attention to detail, and an ability to meet deadlines. Each editor would receive an honorarium upon completion of his or her work for that issue. If interested in this position, please e-mail a resume to Diane Babal, at Diane.Babal@americanbar.org. Any questions about the position can be addressed to Professor Duhl at Gregory.email@example.com.
August 31, 2011
Learning from Women and Other Professions
I read with interest Victoria Pynchon's article from Forbes, Women's Negotiation "Problem" May Be Power, Not Gender. Pynchon argues that despite that dramatic increase in the number of women attending business and law schools, the fields of business and law are still largely dominated by men. I think that's largely true. She explains what she calls the "Old Negotiation Normal":
Because women came so late to the game of commerce, most broken business deals I litigated during my twenty-five year legal career were negotiated by businessmen, drafted by male lawyers, and breached by male managers and executives. The agreements were reached in competitive distributive bargaining sessions. They were drafted in adversarial settings. And too often they were breached because the party that squeezed the last dime out of his opponent got a little karmic payment in the courtroom.
The solution? Pynchon asks, "what if women's styles are the new normal and men's begin to be labeled uncooperative, disruptive, self-centered and privileged?" I would add some modifiers to the proposed solution, and note that the styles referenced are traditionally viewed as male or female, but obviously aren't solely used by one gender or the other.
Not all fields are dominated by men. Public relations, for example, is a field that has a number of women in leadership positions. I worked in public relations for two agencies before law school, and my bosses were female, my clients were female, and many of my co-workers were female. (And I worked in the video game industry.) The management style was, I think, more collaborative than it was as compared to my life in law practice, but I can also say my PR experience was not any less competitive, deadline driven, or quality focused than my law practice.
In fact, working in a PR agency was great experience for legal practice (as I tend to think many jobs are). My PR background also informs my teaching, both in terms of how I teach, and how I communicate about what life in practice can and should be. Of course, I needed my legal knowledge base to do my job as a lawyer, but I had already managed a million-dollar client budget, worked with clients who had the option to find someone new, worked with support staff and outside vendors, and understood the difficulty of balancing financial restraints of clients with the expectations of those clients.
The main thing I learned was that I needed to train those who worked for me, not just finish client work. So, when my account executive drafted a press release or part of a PR plan, I needed to mark it up, and give it back so that he would know what I wanted (and the client wanted). My inclination was to clean it up, fix it, and send it out. What happens when you do that? You tend to get the same quality of work every time, because you are accepting it. By training the people who worked for me, I could get the client a better product, in two ways: (1) account executive hourly rates are lower than account supervisor rate and (2) I could focus on account-supervisor-level work, and not account-executive-level work.
I traditionally think of that as good client service, and delivering quality work product at appropriate value. I suppose that style of working, and thinking about work, could be deemed "women's style." Either way, count me in.
August 26, 2011
In Law and Almost Everywhere Else, Reduced Regulation Is Not Deregulation
The Wall Street Journal recently ran an op-ed: Time to Deregulate the Practice of Law: Every other industry that has been deregulated, from trucking to telephones, has lowered prices without sacrificing quality. An interesting premise, and there are certainly some valid points. But it jumps out at me that there is an overall sense that all regulation is "bad." Plus, I see this as a fundamental overstatement of what "deregulation" is.
Trucking and telephones are not unregulated; the industries are certainly much less regulated than they were, but that is different than being unregulated. Reducing regulations often will increase competition by increasing market participants, and that can be a good thing. But this is true for every regulated industry.
If we reduced regulations on doctors and surgeons, there would be more and cheaper option for their services, but it's not at all clear it would a make health care better. The WSJ article states that "the medical field created physician's assistants to deal with less serious cases, [and] the legal profession can delegate less serious tasks. I agree. There is a difference between delegating diagnosis of a rash to a physician's assistant and delegating open-heart surgery. But physician's assistants still have a base level of education and expertise, in a way that unregulated lawyers would not, as I understand the proposal. Plus, it's not as though the era of physician's assistant has stemmed the tide of rising health care costs or dramatically increased access to medical care.
If we really hate legislation, we could eliminate usury laws, which would increase access to captial. We could remove speed limits, stop signs and stoplights, thus reducing regulations on the flow of traffic. We could elimate child labor laws, increasing the available workforce. And we could eliminate the FDA and kitchen inspections, thus making food cheaper and more accessible. All of these things have a downside, of course, but we could do it.
Regualtions are often overblown, intrusive, and unnecessarily restrictive, and that is a problem. And modifying and reducing some of the regualtions in my examples above may very well lead to a more efficient market and greater access to the relevant goods and services. But we need to keep in mind that there is often value in some regulation so that we can have some sense of safety and reliability, which also has value.
I'm open to reducing some regulations on lawyers, and I agree that the market for legal services could be improved in a number of ways. But "deregulation" is not the answer. Rethinking and reducing regulation may well be.
August 10, 2011
Teaching Lawyers to Innovate
I have been traveling around the country for the last couple weeks (for both work and pleasure), and will be home just in time for orientation, which starts on Monday for the University of North Dakota. As I prepare for the coming year, I have been looking for interesting articles and ideas to help provide a more holistic educational experience.
To that end, The Economist has an interesting article about a study called “The Innovator’s DNA”, co-written by Clay Christensen, Jeff Dyer and Hal Gregersen. The study find "five habits of mind that characterise disruptive innovators: associating, questioning, observing, networking and experimenting. Innovators excel at connecting seemingly unconnected things."
The question is posed: can we teach people to be innovators? And can we teach lawyers to be innovators? The Economist story ends this way:
For all their insistence that innovation can be learned, Mr Christensen and co produce a lot of evidence that the disruptive sort requires genius. Nearly all the world’s most innovative companies are run by megaminds who set themselves hubristic goals such as “putting a ding in the universe” (Steve Jobs). During Mr Jobs’s first tenure at Apple, the company’s innovation premium was 37%. In 1985-98, when Mr Jobs was elsewhere, the premium fell to minus 30%. Now that Mr Jobs is back, the premium has risen to 52%. The innovator’s DNA is rare, alas. And unlike Mr Jobs’s products, it is impossible to clone.
Obviously, we can't teach every one of our students to be the most innovative lawyers any more than every CEO can be Steve Jobs. But it doesn't mean we can't try, right?
June 15, 2011
Possible Lessons from Business Education for Legal Education
The Economist has two stories that caught my eye this morning. The first is Tutors to the world: Business schools are globalising at a furious pace—which is largely a good thing. The article explains that business schools (graduate programs providing the MBA) are expanding and growing globally. While those schools are increasing their reach, they also run the risk of diluting the quality of education. Still,
the benefits of global business education far outweigh the costs. Business is globalising: the proportion of the world’s largest 500 firms that hail from emerging markets has doubled in five years, from 8.2% in 2005 to 17.4% in 2010. Business schools have no choice but to follow suit.
The article further notes that as business education takes a more global focus, it is becoming decidely "less American." That may or may not be a good thing, but my sense is that many think it is a postive turn.
The second is The Race to the Bottom, which reports that undergraduate "business studies" students are "according to a long article in The Chronicle of Higher Education, by far the idlest and most ignorant." The article continues:
What accounts for this educational wasteland? To some extent it is a matter of self-selection. Many people choose business studies precisely because they don't have a lot going on upstairs. And they prefer to spend their time networking and looking for jobs rather than, say, grappling with Schumpeter's ideas about business cycles. But universities also bear some of the blame. Many universities have treated business studies as a cash cow: there is lots of demand, business students do not require expensive laboratories, and business academics can supplement their incomes with outside consultancy. Business studies is also a mish-mash of subjects, many of them soft and ill-defined, like leadership and business ethics. It is notable that students who focus on “hard” subjects, such as finance, put in much more work than those who study “leadership” and the like.
(1) Are business schools that different from law schools? On the one hand, of course they are. Business is viewed globally, while law is (often) viewed locally (see, e.g. licensing requirements). As such, requirements and processes for students tend to vary (I think) much more significantly in law than in business from country to country. But as most of us know, the law is constantly becoming less local and more global. If business leaders are taking a global approach, it means they will need global counsel. Local counsel in every jurisdiction still works okay for litigation (it seems to me), but it doesn't work as well for transactional work. Good counsel understands the appliable legal regime as well as their client's business goals. As such, law schools need to work to keep up, and so do law firms.
Just adding a Singapore office doesn't make a firm any more global than a summer program in Greece or Norway makes a law school global. (I say this as someone who took and benefitted greatly from a summer law school program overseas.) It's what happens in those locations, who is part of what happens, and what comes back to the school/firm that matters. Just having the location is mostly marketing unless there is some real integration.
(2) Might student's choices of course be as telling in law school as it appears to be in undergraduate schools? Law students are often thought to "grade shop" and perhaps "effort shop" for courses that are likely to lead to good grades/less work. I don't know these "shopping" problems are as pervasive as some think, but it's worth trying to find out. (And I'm working on that.) Either way, it's worth knowing if there is a correlation between course choices and performance, both in school and beyond.
May 27, 2011
Vonnegut's Law: Pattern Finding in Law Reviews
Robert Krulwich, on his NPR blog, writes that that people are "pattern-finding animals." He goes on to say:
Do any of us live beyond pattern? Do great musicians, breakthrough artists, great athletes operate pattern free? Pattern indifferent?
I don't think so. Artists may be, oddly, the most pattern-aware. Case in point: The totally unpredictable, one-of-a-kind novelist Kurt Vonnegut (Slaughterhouse-Five, Cat's Cradle, God Bless You, Mr. Rosewater) once gave a lecture in which he presented — in graphic form — the basic plots of all the world's great stories. Every story you've ever heard, he said, are reflections of a few, classic story shapes. They are so elementary, he said, he could draw them on an X/Y axis.
The site then has a link (here) to a short excerpt of a talk from Kurt Vonnegut that is worth a look. (I think, anyway, but I am huge Vonnegut fan.)
What does this have to do with business law? Well, maybe not that much, but it seems relevant to me in the context of the discussion about the recent, but not new, concerns about law reviews Steve Bradford, Stephen Bainbridge, and others are talking about. The current focus of discussion is the concept of "specialty journals" and, as Steve wondered: "[W]hy are mainstream courses like tax and business associations considered “specialty” topics, unlike the constitutional law and jurisprudence articles that seem to fascinate law review editors so much?"
As someone who writes primarily on corporate law and energy law issues, I am well aware of the specialty journal concern. And I, too, find it frustrating sometimes. But maybe it is just that law review editors are pattern-finding animals, just like the rest of us.
More after the jump:As an aside, I'm always torn on the heavy critique of law reviews and the law review process. As a former editor in chief, I found the Law Review experience to be invaluable, and a major reason why I do what I do today. I learned something about scholarship; I learned something about process. I learned about how I wanted to be an author (and how I didn't want to be as an author). I learned I wanted to be law professor. And I know that learning almost certainly came at some expense to our largely outstanding group of authors. I think we were professional, and courteous, and careful. That was always our goal. But I also know I would have been a lot better at it the second of third time around.
I am now on the Board of Advisory Editors for the Tulane Law Review, and I sit on a board for the Tulane Law Review Alumni Association, a 501(c)(3) a group of us started to help support the law review. I am also proud to be the North Dakota Law Review faculty advisor. I spend so much time on this because still believe it is an invaluable experience for students, and it can be a very good experience from the author side, too. Maybe it is that the student value is the primary value. I think it's more than that, but I appreciate others have different views.
One way or another, the patterns are set in place, and we seem to follow them. Despite my frustrations with the process, I do think there are a lot of upsides to the law review and law journal system. And I don't think we should forget that either.
May 09, 2011
A Little Perspective on Legal Fees and the Legal Profession
The Wall Street Journal reports that Goldman Sachs spent $700 million on legal fees last year, including $434 million for outside counsel. This is a lot of money, although I'd note that Goldman also had more than $39.16 billion in revenues for 2010 (10-k pdf here).
At the New York Times Dealbook, Professor Peter Henning discusses the high costs of internal inquiries, which are often related to SEC and Justice Department investigations. Professor Henning explains that some companies, like Avon, have broad indemnification policies for employees that require the company to cover legal expenses for any investigations related to their employment, as long as employees agree to repay the expenses if indemnification is not warranted at the conclusion of the case. These costs are so high, though, that the legal fees often can't be recovered, because the employee simply doesn't have the means to repay the obligation.
Professor Henning closes with this:
Legal fees could easily run into the millions of dollars for any individual defendant, all payable — at least initially — by Avon. While crime does not pay, it sure can be lucrative for law firms.
On the one hand, this is true. But I can't help but take issue with posture of such statements. We don't very often hear something like, "While cancer is unfortunate, it sure can be lucrative for doctors." I continue to bristle at statements that expand the "ambulance chaser" narrative into the corporate context and make lawyers look like opportunists who are seeking to capitalize on the misfortune of others. I feel like a lot of us, whether in practice or in the academy, have unwittingly bought into this narrative. I know I have at times, and I don't mean to pick unfairly on Professor Henning.
Of course, I know there are lawyers who are opportunists, but that is not at all a fair charcterization of the profession in my experience. Most attorneys I know really believe in providing good representation for their clients, and they worry about their clients' well being. Suppose a client comes in and says she has been working for a company conducting overseas business. She's trying (as she should) to expand the business into a new area. She takes a few people to dinner, buys a few drinks, and the next thing she knows, the Justice Department is investgiating a Foreign Corrupt Practices Act claim against her. When she sits down in your office, I don't think the first thought most lawyers have is -- Cha-Ching! Maybe I have just worked with and for some really good people (and I have), but that is simply not my experience.
I like the concept that the legal profession is a noble profession, and I still believe it is largely true. As attorneys, I admit we often don't live up to the highest ideals, but that's doesn't make it not true. Failure is a human trait, and it is not true only of those in the legal profession. Doctors and clergy, for example, have had their failures, too.
It's easy to get angry at laywers for legal fees, especially in the litigation context, because the costs are usually to protect something the client already thought was theirs. That's true whether it's a criminal case (even if the defendant wins, the cost is usually to keep his or her freedom). And it's true in the civil context (where the defendant might be suing to get the benefit of his or her bargain). And the client may very well be right. But, ulimately, it was usually not the lawyer who created the problem; it was the investigator or the counterparty or the client, or some combination of those.
I guess I'm just done with accepting the current narrative. I may be a little bit of an idealist, but I'm still proud of the profession I chose, even when I'm not always proud of those in the profession. I think that those of us who still believe in what we do, and why we do it, need to be careful with our language, and be more focused on the bigger picture than we have been when discussing our profession. After all, it's what good lawyers do.
April 02, 2011
Peak Oil Drives Return to the Big Easy
I have the great pleasure of being back in New Orleans. My wife and I bought our first house here when we came to the Big Easy to attend law school at Tulane, and there is always something special about being in this city for both of us. This trips marks my first opportunity to speak at my legal alma mater as a law professor, and I'm quite excited about it.
When we came to Tulane, neither of us knew then what kind of law we would practice, or where, much less that would both want to (and be able to) become law professors. From the moment we set foot in New Orleans, though, we knew we loved it here. And once we started experiencing law school, we both knew we loved that, too. A lot of people can't say that, but we truly did. A lot of it was the subject matter, of course. I also think part of that was because we did it together, and so even when it was hard, it was never lonely. We still love being a part of the law school experience, and we love what we do, and we're thankful to have the opportunity to do what we love. And, again, we get to do that together.
Why is this relevent to this blog? To the the extent it is, I suppose it is because it serves as part of the background for why I do what I do. As I have said before, I believe that energy law and policy is business law and policy. That is true of environmental law and policy in many cases, too. As such, I am excited to be a part of the Tulane Law School Summit on Environmental Law & Policy on the panel, Are We Out of Gas?: The Peak Oil Question. Here's the session abstract:
Oil is not a renewable resource. Peak oil theory suggests that at some point in time demand for oil will be higher than the supply of oil. As oil reserves are depleted, finding and processing black gold will cost more money; possibly to the point where oil extraction will not be worth the costs. Panelists will discuss the legal and political issues revolving around the theory of peak oil. Oil is not a renewable resource. Peak oil theory suggests that at some point in time demand for oil will be higher than the supply of oil. As oil reserves are depleted, finding and processing black gold will cost more money; possibly to the point where oil extraction will not be worth the costs. Panelists will discuss the legal and political issues revolving around the theory of peak oil.
February 25, 2011
Dean Search Announced: University of North Dakota School of Law
The University of North Dakota School of Law just announced its search for our next dean. Obviosuly, I'm biased, but I think it's a great place to work and live. We have a small faculty and a small student body, and we all tend to know each other (and that's usually a good thing). We're the only law school in the state, a finanically healthy state I might add, and that comes with great responsibility and great opporunity. If you're interested, please take a closer look at being a part of legal education in the Northern Plains.
Dean of the School of Law: University Of North Dakota
Location: Grand Forks, ND Apply Now
The University of North Dakota School of Law seeks an exceptional leader as its next Dean. The new Dean will have the opportunity to lead and enhance traditions of excellence and public service that have characterized the School of Law since its founding in 1899. As the only law school in North Dakota, the School of Law and its Dean enjoy a unique relationship with the North Dakota Bar and judiciary. The Dean will have the opportunity to lead the School of Law to the next level of excellence.
The Dean is the chief academic, fiscal, and administrative officer for the School of Law with responsibility for academic direction, faculty and staff development, fiscal and personnel management, student academic affairs and alumni relations. Enhancing relationships with external constituencies, including the State and Federal judicial system, the North Dakota Legislative Assembly and the state’s lawyers shall be a significant objective for the Dean. The School of Law has 240 students and 17 full-time faculty.
The successful candidate should possess demonstrated administrative ability, a collaborative leadership style, a commitment to diversity, effective communication skills and an ability to develop trust and good working relationships within the School of Law and with the University and the School’s external constituencies. Candidates with prior law school teaching, administrative and scholarly experience are preferred.
Candidates should submit a letter describing how their background, skills and education match the needs of the School of Law, a current résumé or curriculum vitae, and the names and contact information of three professional references. Applications should be submitted electronically (Adobe PDF or MS Word format) to: UNDLaw@academic-search.com. Applications should be received by April 15, 2011. For a more complete description of the position, see www.academic-search.com/search.html.
For further information about the University of North Dakota and the School of Law, see www.law.und.edu.
Assisting in this search is: Peter H. Ruger, Senior Consultant Academic Search, Inc. firstname.lastname@example.org 314-537-1448
The University of North Dakota is an affirmative action, equal opportunity employer and actively seeks applications from women and minority candidates.
January 19, 2011
Internal Conflicts: Using Saleschildren to Close the Deal
As the proud parent of a five-year-old (excuse me, five and a HALF), my wife and I are experiencing kindergarten as parents for the very first time. Overall, it's been a great experience. Our son has an engaged and energetic teacher, a beautiful facility, and a usually nurturing and challenging environment. Last night, however, brought home a new experience.
Our public elementary school often has fundraisers to help supplement the school's budget. This year we have been to Turkey Bingo and bought pizzas to support the PTO. Last night a new option came home: a company selling books and magazines. The program apparently involved bringing a salesperson into the school promising opportunities to win prizes if the kids brought back, the next day, ten postcards filled out with addresses of family and friends asking these people to support the school through purchases. If the kids did bring the postcards back filled out, they would win a small prize and be in a drawing to win a big prize. Other sales accomplishments even lead to a chance to win a "cheeseburger phone."
Apparently the salesperson was very energetic and had the kids quite excited. When my son gave me the envelope (he noted that the salesperson "actually said ON-velope, but that's okay, I knew they meant "EN-velope"), he said we "HAD to fill out the postcards and bring them back tomorrow." Being obstinate, as I tend to be, I said, "We don't HAVE to do anything." Then came the waterworks.
In talking to him, it became clear that he equated this sales program to other things he brings home from school that are required -- like his homework or an approval form that needs our signature. After some conversation, I got him to calm down, and I explained that this is a nice thing to try to raise money for the school (I was being generous here), but that it's not required. In fact, some people can't afford to buy extra things or may not have family or friends they can ask to help. I told him that we can, and that I would do it this time, but that it's not a problem if we don't do it. Just as important, I wanted him to know that if someone in his class could not return the postcards and/or make an order, it did not make them bad or sad. They may not be able to do it, may not be comfortable doing it, or may even have forgotten, and that it was okay whatever the reason.
To be clear, I'm not someone who is opposed to paying taxes for public education (ours are quite high and I'm okay with that), and I think education deserves significant financial support. As it is, I think most teachers are both under paid and under appreciated, and I am thankful to have good schools in my neighborhood. I don't fault administrators for trying to do more, and I'm willing to do my part to help in that quest.
I do, however, have a problem with tactics linking a child's perception of success to a child's level of sales. I have a problem with linking reading to sales. And I have a problem with the school's stamp of approval that essentially made magazine sales a part of the curriculum. Beyond that, I don't like the potential conflict the school creates between parent and teacher, especially for five and six year olds.
The conflict? If the school tells a child that something is very important and the school needs their help and support (i.e., sales) and a parent has to tell the child that they cannot or will not buy something or distribute the sales cards, the parent is now undermining the teacher. It is teaching the child that there are times when it is okay to ignore the teacher or administrator, which (barring wildly inappropriate behavior) is contrary to what we are teaching our child. Quite simply, the message is wrong, even if the goal is right.
And the link between this and business law? Well, I'd say it's somewhat analogous to teaching young associates that the number of hours billed is more important than the quality of work. Of course it's important to have a good work ethic and work hard for your clients and employer, but quality of work should be first, not quantity. And in most places, the ideal is both high-quality and high-quantity work, which is okay. I think the quantity over quality message (in that firms tend to track and reward hours a lot more than quality work, especially for young lawyers) is tough on young lawyers. But at least in that case, they are both adults and lawyers, which makes it bearable, if not ideal.
September 23, 2010
Business Associations Meets Employment Law
In my employment law course yesterday, I taught the North Dakota case Earthworks, Inc.v. Sehn (here). I use the case as part of my section on covenants not to compete, and I like it because it also provides a straight-forward opportunity to discuss statutory interpretation. Beyond that, it provides a great opportunity to discuss the need to view cases as a whole and not as topic specific, despite the name of the course or client context in which such cases arise. That is, just because I was teaching the class in Employment Law, it is not solely an employment law case -- there are other issues, too.
The non-compete clause in Earthworks arose as part of an agreement through which Earthworks bought Mr. Sehn's 50% stock holdings so that the other 50% owner, Mr. Marquart hold 100% of the remaining stock. The non-compete agreement provided that Mr. Sehn would not compete with Earthworks in the state of North Dakota for two years.
The applicable statute on non-compete clauses is as follows:
North Dakota Century Code 9-08-06. In restraint of business void - Exceptions.
Every contract by which anyone is restrained from exercising a lawful profession, trade, or business of any kind is to that extent void, except:
1. One who sells the goodwill of a business may agree with the buyer to refrain from carrying on a similar business within a specified county, city, or a part of either, so long as the buyer or any person deriving title to the goodwill from the buyer carries on a like business therein.
2. Partners, upon or in anticipation of a dissolution of the partnership, may agree that all or any number of them will not carry on a similar business within the same city where the partnership business has been transacted, or within a specified part thereof.
I provide the students with only the facts, the contract clause at issue, and the statute above to discuss how we might attack the problem. I start with asking them which statute applies. Many of my students haven't taken BA, so Marquart and Sehn look like partners to them -- thus a brief discussion of the differences between partners and corporations. (Some students noted that it doesn't matter, at least in one sense, because the scope of the non-compete agreement -- the entire state of North Dakota -- violates either paragraph of the statute, which is correct.)
Next, we discuss the requirements for a valid North Dakota non-compete clause under paragraph 1. We discuss whether the goodwill was purchased in the sale. Many students say no, again an opportunity to talk about corporate structure and what you get in a stock purchase. Earthworks argued that goodwill did not need to be mentioned specifically because the sale of goodwill was implicitly part of the transaction. The court agreed, quoting Bessel v. Bethke, 56 N.D. 1, 215 N.W. 868, 869-870 (1927):
Where one sells his stock he necessarily disposes of his interest in the good will of the business conducted by the corporation to the same extent as he parts with his interest in any other property of the corporation. And where, as in the instant case, he disposes of all his stock and severs his connection with a business that had been in a measure dependent for its success upon his skill or ability and contracts at the same time not to re-engage in the same business within an area permitted by the statute, he has, in fact, sold the good will within the exception, and the contract is valid.
Finally, we talk about the outcome of the case. The court upheld the clause, but restricted the scope to the county as required by statute. This gave us a chance to discuss the policy implications of rewriting the clause to repair the faulty portion (thus providing a legal result closer to what the parties seem to have negotiated) as opposed to the equally reasonable possible result of throwing out the entire non-compete provision because it violated the statute on its face. (Note also that the latter becomes even more reasonable, in my view, given that both parties were "represented by an attorney." Oops.)
A lot of students seem to really enjoy seeing the overlap of their various course subjects and find it more exciting and realistic. Some students, though, probably find the overlap between courses and topics frustrating. I just hope this group of students still appreciate that real cases are not employment law cases, or civil procedure cases, or business associations cases -- they are client problems that those clients hire lawyers to address.
September 22, 2010
Civil Discourse, Professionalism, and Blogging
At the risk of being late to the game and adding my two cents to the million dollar pot already created by some real heavy hitters, here's my take last week's blog explosion. A blogger last week at Truth on the Market made a very personal explanation of the reasons he opposed President Obama’s tax plan that would raise taxes on those earning more than $250,000 annually. He explained his issues using specific and candid examples of his family finances to underscore where his money goes and why he (and others similarly situated) should not be deemed “super rich.” The blogosphere went nuts, and led to some thoughtful comments combined with many outrageous and very personal attacks (including threats) that led the blogger to stop posting completing. (Incidentally, I have decided to avoid naming the blogger because I respect his decision, at this point, to opt out.)
From a content perspective, I often disagreed with the blogger, and I disagreed with much of his post that led to the explosion. However, I very much appreciated the post, and we all lose when what could be a productive discourse leads simply to people spewing bile and vitriol. It's one thing for people to tell someone they're wrong or misguided or even dumb; it's quite another to threaten and mock them.
The personal and specific way in which the blogger explained his reasoning offered much to the debate. His post offered a clear and candid explanation of his position, which should have allowed for a real discussion of issues rather than simply providing the traditional forum for a rhetoric-slinging contest. (Not to imply that the original post didn't have it's own bit of rhetoric.) In the end, though, it mostly did neither. It’s too bad, too, because I think it had the chance to lead to a very honest discussion of the goals and objectives behind the tax plan, in addition to the methods of achieving those goals. There is value in understanding where others are coming from, even if we can’t quite get there ourselves.
I have friends of varying views of politics and economics, although (not surprisingly) we usually tend to share similar core values. The difference is often either the method to address our key issues or the priority we assign to those values we share. As a country, I think this describes us more often than we often recognize. Not everyone who is against the health care bill is against people having health care and not everyone who supports regulations on businesses is against business. Sometimes we just disagree (passionately) about how best to provide everyone good quality health care or improve the economy.
And I thought that was the point. We should be talking, debating and prodding to find the better options. That doesn’t mean we won’t think someone else is misguided, smug and pompous, or just plain wrong in the process, but we should still value the discussion, and each other, enough to keep things civil.
I, for one, am trying to engage more discussions of hot button issues (rather than less) in my classes. It’s often easier to avoid some of the thorny issues, but I think I would be failing part of my mission if I didn’t give my students a chance to discuss difficult issues in a learning environment. It’s simply not fair to turn them out into practice without giving them the opportunity to process and respond to those with whom they might adamantly disagree. It’s something they will see regularly, in the office, in court or the boardroom, and on the internet. From my experience, the vast majority of people can handle it, especially when they know the rules.
I now have a great example of how not to act, but the cost was simply too high.
September 20, 2010
Conference Announcement: Fiduciary Duties in Closely Held Firms 35 Years after Wilkes v. Springside Nursing Home
Eric Gouvin, my friend from Western New England College School of Law, sent me the following conference announcement:
On Friday, October 15, the Western New England College Law and Business Center for Advancing Entrepreneurship will present a truly outstanding program examining fiduciary duties in closely held businesses.
In 1975, the Massachusetts Supreme Judicial Court decided the case of Donahue v. Rodd Electrotype, holding that shareholders in closely held corporations owe each other fiduciary duties similar to those owed by partners to each other. The following year, the Court decided Wilkes v. Springside Nursing Home, Inc. to further refine that idea. In the 35 years since those decisions, the law of business organizations and the law of fiduciary duties have evolved significantly.
This conference features leading scholars of business organization law discussing the impact of those cases in on the development of the law. We will also have the lawyers who argued the Wilkes case on hand to provide the backstory on the case.
You may register for the event by contacting Ms. Jackee Gadson at (413) 796-2030 or by sending an email to email@example.com . Registration is $30 and includes lunch and refreshments. For more information visit: www.wnec.edu/lawandbusiness
The schedule for the event looks terrific. If you plan to be in New England in October, I would definitely recommend attending.
September 08, 2010
Helping Students Prepare for Practice
As part of my goal of better preparing students for day one of practice, I have been adding small projects to my larger classes to help supplement the doctrinal discussions. One focus has been to add ethics and professionalism components to my courses beyond my continuing practice of pointing out and discussing ethical issues raised by our cases. To that end, I started Business Associations I a little differently this year.
After discussing my course objectives, goals, and expectations for the course, and before discussing the first reading assignment, I passed out a single sheet to the entire class (about 60 students).
Half the class was informed that they were colleagues in a law firm with Attorney S, and the other half of the class were colleagues in a law firm with Attorney K. I provided them the fact pattern and letter below, and told them that their colleague had either just sent or just received the letter. I then asked them to discuss in groups of three or four any concerns they had and any next steps they might want or need to take. The Handout:
In May 2010, Mr. and Mrs. B went to Attorney K requesting that he prepare an insurance funded buy/sell agreement. Mr. and Mrs. B had been advised by Ms. H that an insurance funded buy/sell agreement was necessary. Attorney K prepared the insurance funded buy/sell agreement for Mr. and Mrs. B.
Later, Mr. and Mrs. B apparently questioned the need for the insurance funded buy/sell agreement. Mr. and Mrs. B retained the Mr. S to review this issue.
The following letter arrived in your office today:
Dear Mr. K,
Sometime last May, 2010, Mr. & Mrs. B approached your office, possibly with the assistance of Ms. H, requesting advice concerning a buy-sell agreement for their corporation. Since that time, Mr. and Mrs. B have questioned the need for the buy-sell agreement, since they are married, and are also the only shareholders in the corporation.
To be frank, Mr. K, my clients believe they were mis-advised, and intend to file a complaint with the state Disciplinary Administrator concerning your part in drafting the buy-sell agreement. However, if you were to simply refund your fee to them, in care of this office, I believe they may relent, and not file anything with the state Disciplinary Administrator.
I will need to hear from you no later than Monday, September 13, 2010, if this is acceptable to you. If we don't hear from you, we will assume that you would like to address this matter through the Office of the Disciplinary Administrator. If you have any questions, please do not hesitate to contact my office.
The above fact pattern and letter are pulled from a state supreme court disciplinary case, and the case provides two subsequent communications that provide the rest of the exercise. I, of course, did not tell them it was from a disciplinary case.
The discussion was fairly lively, and the students raised a lot of interesting issues and questions. However, very little of the discussion focused on the "settlement attempt" made by Attorney S. The discussion focused mostly on whether the buy-sell agreement should have been drafted and how to manage the potential harms from the case moving forward. The discussion moving forward also focused largely on the facts, even as I provided the subsequent documents.
This exercise helps frame important ethical and professionalism issues that students might not otherwise see (at least not in context), and it also provides a way to discuss the business of a law practice as related to a business law representation. Part of the conversation focused on how one maintains a good law business, interacts with clients and other attorneys, and thinks about the possible repercussions of such an allegation. Of course, it also provides the opportunity to discuss our obligations as professionals -- to our clients and the bar-- and the need to understand and embrace the rules of professional practice. Finally, it provides the opportunity to discuss the need to assess and investigate the merits of any claim BEFORE anything leaves the office.
If you are interested in the exercise and/or the case, please let me know. I am happy to share.
August 27, 2010
Merging Skills and Doctrine in the Classroom: One Professor's Modest Beginning
The AALS Annual Meeting bulletin arrived in my mailbox today, reconfirming that curricular reform, new forms of assessment, and the need to bring skills into the class are hardly new topics of conversation for most faculties. From the Carnegie Report to Best Practices, there seems to be an emerging consensus that more skills and professional training are necessary for law students. What is not always clear is how to do it.
A number of schools, including University of Detroit Mercy and Washington & Lee, have transitioned to full programs that seek to modify the way students experience law school, especially in their third year. Whether the new programs actually achieve their goals remains to be seen, but such programs certainly provide an interesting new method of one part of legal education.
Of course, not every school has the resources, consensus, or personnel to make such a change (often, all three are probably lacking to some degree). But that doesn't mean nothing can be done. As we consider how best to update and evolve our curriculum at the University of North Dakota School of Law on a school-wide basis, a number of us have also looked at what we can on a micro level to build on our current offerings.
To me, helping student be come more practice ready is an essential part of our mission. The emerging importance of teaching students skills is one major part of this. I believe that this means having a concerted effort of the full-time faculty to at least consider integrating skills into their courses and providing new learning experiences for their students. Despite the often highly specialized and superb talents of many adjuncts, we cannot rely only on non-full-time teachers to handle such a critical part of learning to become a lawyer.
While it is not realistic to expect that we can prepare law students to handle "partner-level" work on day one of practice, we can do a better job of preparing students to handle life in practice from the moment they join the firm, start at the prosecutor's or public defender's office, or hang out a shingle. This means giving them a taste of what it's like work think and write in a practice setting.
For my Business Associations I class, which usually has between 55 and 85 students, I use some exercises and share real-life documents to help provide connections to practice. Beyond that, though, I haven't found a way to make this a highly skills centered class. I am okay with that, because I don't think every course needs to (or should) be skills focused in the same way I don't think every class should be taught by, for example, a lecture with a single comprehensive exam at the end.
In my Labor & Employment Law class, however, I do something a little different. This is my second time through this iteration of the course, and my students (and I) enjoyed it in the first year. Here's the plan: I run the course as a small law firm, where everyone works with me. Enrollment is capped at 24. I use the Case and Controversy files, which are formerly the CaseFile Method, (available here) as the primary materials, and I have created a number of my own materials, especially for the labor-related issues I cover. Below the break are some excerpts from my syllabus and course overview. I welcome questions, comments, and/or suggestions (via comments to this blog or my e-mail, which can be found on the left bar of this page).
Labor & Employment Law Course Overview and Syllabus (excerpts)
Course Introduction:Welcome to Labor and Employment Law. By enrolling in this course, you have just joined a virtual law practice, Dewey, Servem & Howe, P.C., in which you and your classmates are entry-level associates. As such, my expectations of you will parallel to those found in the workplace. For example, our classroom will be a casual “office,” but professional dress is expected during times where it would be in the law firm (e.g., a client meeting). Your reading assignments are provided in this syllabus. However, your writing assignments, which are part of how you will be assessed in this course (described in detail below), will be provided via e-mail in the same way you would likely receive assignments in practice. Those assignments will explain your overall audience, such as the client, opposing counsel, or legislators, but at all times you will also be writing for me as your assigning partner. Below you will find a description of the course materials, objectives, and expectations, and a syllabus. I look forward to working with you. Course Overview and Expectations Objectives:
Upon successful completion of the course, students should be able to
• Recognize issues and argue legal positions related to labor and employment law problems, including an understanding of employment markets; hiring, firing, and dispute resolution processes; and contract interpretation and negotiation.
• Write, reason, and deliver writing projects on deadlines similar to those found in legal practice.
• Present legal ideas in a clear and cohesive manner for a variety of audiences, including other attorneys, current and potential clients, opposing parties and counsel, judges, arbitrators, and mediators.Attendance and Participation: For the Case and Controversy materials to be effective, students must attend class regularly and must be prepared for class. Students must be prepared to discuss the cases and other materials and support their clients’ positions, as well as explain the counterarguments. Students will be permitted one opportunity to “pass.” Beyond this, additional “passes” will be counted as an absence. That said, the course is designed to be less formal and have the discussion flow naturally. As such, the goal and expectation is that there will be little need for anyone to “pass.” To be clear, incorrect answers are never a problem in this course. No response or uniformed guesses are a problem. There will never be sanctions for trying in this course, only for not trying. Students are expected to attend every class. Students are permitted to miss up to four classes for other obligations without explanation. This number is to include all absences (except those for religious observance, which are separate), including sickness, out-of-town interviews, etc. If classes in excess of four are missed, to avoid withdrawal from the course a written explanation may be required, including the reason for missing additional classes, the student’s plan to ensure the materials covered in the missed classes will be learned, and the reasons the student should be permitted to continue in the course. Please contact me or Dean McLean with any questions about the attendance policy.
Evaluation/Grading: Because of the course and assignment structure, grading in this course is not anonymous.
Short Writing Assignments – 60% of the course grade (3 assignments at 15% each and 3 rewrites at 5% each) For each segment of the course, students must pick three Files upon which to complete their writing assignments. Students may be asked to write a short memorandum, draft proposed legislation, suggest contract language, or craft other practice-related documents. These assignments will be 2-4 single-spaced pages addressing the issues related to the relevant File. Rewrites and/or corrections to the assignments are also required. Once signed up for an assignment day, the specific assignment will be provided by e-mail between 48 and 96 hours before that class. More detailed requirements for these assignments will be provided during the first class meeting.
Class Participation/In-Class Assignments – 10% of the course grade In-class assignments will be distributed in some of the classes. Some of these assignments will be completed in small groups and others will be individual assignments. These assignments, along with the contributions to the class, will be part of the grade. The expectation is that each student will get all the available points in this segment of the course, assuming each student makes an effort to participate and engage in the discussions. Obviously, regular (but not perfect) attendance is necessary.
Student-Led Review – 5% of the course grade After the materials for each the Employment Law section of course is completed, there will be two days of review that will be student led. Each student must present a portion of the course (5 minutes) related to one of the CCFs. Students may choose to work in groups of two, if they wish (groups of two would have 10 minutes of presentation time). A sign-up sheet will be provided during class to assign each student a case or group of cases for review.
Course Material Presentation – 15% of the course grade Each student will be required to teach a portion of one class (15 minutes) in the last third of the semester. The student will be provided the materials to teach and will be responsible for presenting a portion of that day’s materials.
“Exit Memos” – 10% of the course grade (5% mid-term, 5% end of course) After the review for each portion of the course is completed, students will be asked to write an Exit Memo of 1-2 pages. The Exit Memo is designed to be self-reflective and will explain what the student has learned during that section of the course, what was most important to them in that section, and what they believe is likely to be the most significant impact on the law and practice of law. A detailed description of the exit memo will be provided.