Friday, July 25, 2014
This post started off as a comment to co-blogger Haskell Murray's post Modifying the Law Review Submission and Review Process, and is perhaps overkill, but at least a few of us, thanks in part to Steve Bradford's post, are finding the conversation fruitful, so here we go:
In response to my suspicion that widespread law review changes could impact promotion and tenure (P&T) processes, Haskell writes: "I am not sure why the expectations for P&T would have to change if law reviews instituted blind review. It seems that all blind review would do is make the selection process more fair."
Maybe he is right, but here's my thinking: I believe expectations for P&T would change because I believe that widespread blind review would increase the (already long) turnaround time for getting pieces accepted for publication. If I am right (an open question) that it would increase the review time, it would make it harder for some faculty to get their pieces accepted, which is often required for it to "count" in the review process. Perhaps this would be a good thing, but I would see it as a potentially significant change.
This could also impact higher ranked schools even more. That is, Haskell has noted, people visiting at higher-ranked schools often find that visiting submission to be their most successful submission. (I’ve never had a top-20 or even top-40 school with my name for a submission, so I can’t say for certain.) It is my sense that higher-ranked schools get a bump with law reviews, and that's not always (ever?) fair, but if that bias went away, it could make it even harder to get through the P&T process at those schools without some modifying my understanding of some assessment measures. This is where I agree with Steve Bradford that if schools are using law review rankings as a proxy for quality, they are shirking their duties, but I still think many schools (or at least some people in schools) do. Again, a change may lead to a good shift over all, but it would still be a shift.
I concede it’s possible that blind review could increase the quality of journals, but I think that would also need peer review to go along with it, which could, again, extend the reviewing timeframe. For the current system, I think one of the reasons we don’t have blind review is that the system is full of proxies. These proxies have perhaps been deemed desirable given that we have already ceded publication decisions to 2Ls and 3Ls, and open review gives those students more information. I do think it may be more desirable and more fair to use blind review, though I think there’s also more likely we’d be swapping one problem for another if we don't add more seasoned reviewers to the mix. In one of my earlier posts (linked in my recent one) other disciplines indicate peer review alone won't fix the problem, and I don't think just blind review will either.
I maintain that a faculty- and practitioner-assisted process (including blind reviews) would benefit law reviews and legal scholarship, but it means we’d all have to pitch in even more. (I support that, but it would need widespread buy in.) My sense is that law reviews are slowly responding to the concerns and that we will see a better process result. I think this whole discussion is a net positive, and I hope we’ll see more of an evolution. As I have noted in my other posts, though, because I see value in many parts of law reviews, I think the coming changes should be an evolution and not a revolution.
In short, I think the law review submission and review process could be improved by at least two modifications.
1. Blind Review.
Currently, law review editors see, and in fact require, not only the author’s name and employer, but also the author’s entire CV. This is quite unlike the article selection process in other disciplines where all identifying information is supposed to be stripped.
If blind-review were adopted by law reviews, Josh Fershee claimed that it might still be possible to find the identity of the author through self-citations. Authors, however, do not always cite themselves and even if they do, law review editors would have to read pretty carefully to figure out the idenity of the author. Currently, it is simply not possible for law review editors to read closely all article submitted, so stripping the author's name would, at the very least, require the editors to dig into each article. Also, Authors could be instructed to remove, during the review process, identifying phrases like “in previous work I argued…”
This call for blind review by a Harvard law student in 2009 cites the gender bias, nationality bias, and prestige bias that can result from a non-blind selection process. I believe a few of the elite law reviews have adopted blind review from outside experts (Stanford Law Review is one), but it is certainly not widespread among U.S. law reviews.
In the comments, Josh said he thought blind review could work for at least some law reviews, but that the “expectations for promotion and tenure, would have to change” if we altered the system. I am not sure why the expectations for P&T would have to change if law reviews instituted blind review. It seems that all blind review would do is make the selection process more fair.
2. Exclusive Submissions (or Submission Limits).
One of the problems with the law review submission and review process is that most decent law reviews get hundreds, if not thousands, of articles to review in each submission cycle. Even if the law review editors were able to overcome the biases mentioned above, they simply do not have time to give each article anything close to a thorough read. The editors have to eliminate blocks of articles on easily identified things such as the subject matter of the article, the catchy titles, and the prestige of the author’s school.
If law reviews required exclusive submissions, the editors would have time to give each article a hard read before extending an acceptance. Florida State and Pepperdine have done exactly this in adopting exclusive submission windows for certain slots in their journals. This seems like a sensible move and I think more law reviews should follow suit.
If the exclusive submission requirement is too dramatic of a shift, I suggest ExpressO limit each author to 10 journals (or some other reasonable number) per article, per submission cycle. This limit would cut down significantly on the reading load for law review editors and would allow them to do more thorough review of the article submitted.
I welcome any thoughts on these suggestions.
Wednesday, July 23, 2014
As someone who teaches and researches both business law and energy law, I often focus on the overlap of the two areas, which I find to be significant. One of my most recent projects has been to write a new casebook, Energy Law: A Context and Practice Casebook, which will be available for courses taught this fall. I wrote a detailed description of the book in a guest post at the Energy Law Professor blog, but here I wanted to highlight the business aspects of the book.
The second chapter of my book is titled The Business of Energy Law. That chapter begins with some key vocabulary, and I then provide students with a client issue to frame the reading for the chapter. The issue:
Your firm has just taken on a new client who is a large shareholder in many companies. She is particularly concerned about her holdings in Energex, Inc., a publicly traded energy company. Energex was founded in 1977 by a oil and gas man from Louisiana who is still the CEO and a member of the board of directors. The client is concerned that the CEO is taking opportunities for himself that she thinks belong to Energex. As you read the following sections, consider: (1) What are the potential conflicts of interest the CEO might have? (2) Is it a conflict of interest if the activity is permitted under the CEO’s employment contract? (3) What kind of documents might be publicly available for review and where would you find them? (4) If it goes to litigation, what other information might you seek? From whom?
The first part of the chapter covers Business Organizations and Employment Law as Energy Law, including derivative suit and executive compensation contracts. The chapter also has the following sections: Antitrust as Energy Law, Mergers and Acquisitions, and Entity Structure and Fiduciary Duties.
Over the years, as I have taught my Energy Law Survey course and Business Organizations (as I do again this fall), I found that I can help make sense of things for students in each class when I borrow examples from the other class. My book helps make the connection concrete, and I hope it will help students understand more of the "why "to go along with the "what." As I often tell (preach to?) students, understanding business organizations is critical to all aspects of practice, regadless of where you intend to focus, whether it's energy law, environmental law, criminal law, or even family law.
This fall should be fun. For me, at least.
Tuesday, July 22, 2014
Steve Bradford yesterday posted a thoughtful (as is usual for his posts) critique of law reviews. I had drafted a comment, but Steve suggested that I should post links to my prior posts separately, so here goes, along with (what has turned out to be a lot of) additional commentary.
I think Steve has some valid (and compelling) points. As I have written before, though, I can’t go as far as he does. I won’t rehash all that I have written before on this subject, but one of my earlier posts, Some Thoughts for Law Review Editors and Law Review Authors covers a lot of that ground. Please click below to read more:
Steve Bainbridge has an interesting response to yesterday's post on law reviews, linking to a number of other interesting posts he has written. Definitely worth reading. (He agrees with me, so he must be correct.)
A number of you commented on my post yesterday. I will get those posted sometime today. Sorry for the delay. My wife and I got back home this morning at 2:30 a.m. from a wonderful vacation trip to San Diego. (Yesterday's post was scheduled in advance; we have a firm no-work rule during vacations.)
Monday, July 21, 2014
A couple of weeks ago, I posted a review of an article on mutual fund fee litigation. In my post, I apologized for reviewing the article “late.”
I thought about the use of the word “late” after I posted. The article has been available on SSRN, the Social Science Research Network, since March, but it has not yet been published in a law review. But, in the world of blogs and instant access to everything, waiting until publication in print truly is late.
Most legal articles are now posted on SSRN as soon as they are finished, and I, like many other law professors, don’t wait until publication to read articles in my areas of interest. I pull those articles straight off SSRN. SSRN helpfully provides subject-specific emails with abstracts and links to newly posted articles.
My first crowdfunding article had hundreds of downloads before it appeared in print. It came out in a law review at almost the same time the final crowdfunding bill passed Congress; if I had not posted it on SSRN, it would have had no chance to affect the debate. (I’m not sure it had much effect anyway. The drafters of the final bill may have heard some of the notes of my composition, but they certainly missed the melody.)
So, in a world where articles are publicly available and read long before they appear in law reviews, what exactly is the value of law reviews? Most of their content is stale by the time it’s published.
Law reviews as filters
Law reviews certainly don’t do much to filter “unworthy” publications. Law reviews have proliferated to the point that almost anything can be published in a law review somewhere.
Law reviews as signals of quality
The law review in which an article appears may signal the article’s quality; if so, that signal usually comes too late. By the time an article appears in print, I and many others have already decided whether to read it. And reading an article’s abstract and introduction usually provides a much better sense of its quality than the journal name attached to it. Faculty members and expert practitioners are much better judges of the quality of articles in our fields than a student editor without significant expertise in the area. I know this is heresy, but even Harvard and Yale sometimes publish crap.
Law review placement also shouldn’t be used as a quality signal in evaluating untenured faculty members. Tenured faculty members who cede judgments of quality to second and third year law students, even the law review editors at prestigious law schools, aren’t doing their job.
Law reviews as editors
Law reviews provide editing, but, in my experience, that editing is as likely to reduce the quality of an article as to improve it. I can think of several instances where student editing made my article marginally better—including one brilliant addition to a footnote in a humorous article I wrote. (Thank you, Northwestern Law Review editors.) But I can also think of several edits inserted at the last minute without my approval that made articles significantly worse. I can’t think of a single instance where student editing kept me from making a serious substantive mistake.
Law reviews and accessibility
Once articles are published in law reviews, they’re available on Westlaw and Lexis, and thus more broadly accessible. But there’s no reason why availability needs to be tied to law review publication. If law reviews didn’t exist, Westlaw and Lexis would find a way to tie into the SSRN system. Or the free, publicly available SSRN system might eventually supplant Westlaw and Lexis, at least for law review articles.
Law review as an educational experience
I have been focusing on the needs of authors and readers. But what about the student editors? Don’t law reviews provide them with a valuable educational experience?
I see little value in educating students in the fine minutiae of Bluebook citation form, and most actual editing is done by students with little or no professional instruction or supervision. Advanced courses in writing, editing, and legal research could provide better instruction more efficiently.
So I repeat—what’s the value of law reviews?
Thursday, July 10, 2014
In last week’s post about the business of the World Cup, I indicated that I would review Christine Bader’s book, The Evolution of a Corporate Idealist: When Girl Meets Oil. I have changed my mind, largely because I don’t have much to add to the great reviews the book has already received. Instead I would like to talk about how lawyers, professors and students can use the advice, even if they have no desire to do corporate social responsibility work as Bader did, or worse, they think CSR and signing on to voluntary UN initiatives is really a form of "bluewashing."
Bader earned an MBA and worked around the world on BP’s behalf on human rights initiatives. This role required her to work with indigenous peoples, government officials and her peers within BP convincing them of the merits of considering the human rights, social, and environmental impacts. She then worked with the UN and John Ruggie helping to develop the UN Guiding Principles on Business and Human Rights, a set of guidelines which outline the state duty to protect human rights, the corporate duty to respect human rights, and both the state and corporations' duty to provide judicial and non-judicial remedies to aggrieved parties. She now works as a lecturer at Columbia University, where she teaches human rights and business and she also advises BSR, which focuses on making businesses more sustainable. Her book tells her story but also quotes a number of other CSR professionals and how they have navigated through some of the world’s largest multinationals.
Bader’s book has some important takeaways for all of us.
1) In order to have influence, we have to learn to speak the language that our audience understands and appreciates- I tell my students that when they write exams for me, it’s all about me. Other professors want their exams written with certain catchphrases using the IRAC method, and I may want something different. One size does not fit all. Attorneys learn (or get replaced) that some clients want long memos, others want executive summaries and bullet points and all want plain English. Talking to a venture capitalist is different than talking to a circuit court judge. Similarly, many law professors are behind the curve. If we only talk to each other in the jargon of the academy and insulate ourselves, the rest of the world won’t have the benefit of our research because they won’t understand or want to read it. Academics have a lot to contribute, but we need to adapt to our audience whether it’s policymakers, judges, our peers or law students.
2) Sometimes we have to be less passionate in making our arguments and appeal to what’s important to our audience- This point relates to Point 1. Bader regularly met with a number of constituencies and was understandably zealous in trying to convince others, internally and externally, about her positions. She and other “corporate idealists” from other firms often learned the importance of language- making a business case to certain internal stakeholders meant talking in terms of the bottom line rather than using the maxim “it’s the right thing to do” or “doing well by doing good.” Good attorneys know how to represent their clients without taking things personally because sometimes the passion can actually dilute effectiveness. As law professors, we need to teach our students to be more effective so that they know how and when to modulate their tone, and how to pivot and change the way they frame their arguments when they can’t convince the recipient of their message.
3) Almost everything comes down to risk management- Bader often had to focus on risk management and mitigation when her moral arguments fell on deaf ears. Those who teach business should make sure that students have a basic understanding of the pressure points that business people face. For some it may be tax liability. For others it may be the appropriate exit strategy. In essence, it all comes down to understanding the client’s risk profile and being able to advise accordingly. Litigators should also understand risk profiles so that they can develop an appropriate settlement strategy and help their client’s work their way through some of the unexpected pitfalls that may arise over the course of the case.
4) Building relationships is a critical skill- Bader learned that social interactions with her peers at BP and the external stakeholders after hours greatly increased her effectiveness in dealing with thorny issues that arose during business hours. Lawyers often believe that if they have the substantive knowledge, they are the smartest people in the room. Law firms don’t teach young associates about the importance of emotional intelligence and building relationships with peers, opposing counsel, and clients. In fact, many law students and lawyers believe that having the reputation as a “shark” is the best way to represent clients. We need to teach our students that it’s better to be respected than feared or hated, and that they can disagree without being disagreeable. Those of us in the academy should model that behavior more often.
5) We must learn to compromise and recognize that incremental changes are important too- Bader and other corporate idealists often want to change the world but quickly learn that internal and external stakeholders aren’t ready to move that fast. She discussed “nudging” her client toward the right direction. Law school and law-related television shows lead students to believe that the end game is to win and to win big. In the business world, sometimes there are no big wins. Lawyers and business advisors often take two steps forward and one step back, and that’s ok. Students and attorneys who take classes in alternative dispute resolution learn this valuable skill. Bader and other corporate idealists also realized that you have to work with people on the opposite side who feel just as strongly that their position is on the side of the angels. Lawyers who know how to build relationships and refocus their messaging can influence those on the other side if they are willing to listen, and when necessary compromise and accept small victories.
6) We can compromise but shouldn’t compromise our values- When Bader felt that her work was no longer fulfilling, she looked for other positions that aligned with her world view. With rising student debt and many lawyers living beyond their means, it’s difficult for lawyers to walk away from a job or client that they don’t like. That’s understandable. It’s more problematic to stay in a situation where there is criminal or ethical misconduct without speaking up or leaving because of the financial handcuffs. It’s also unacceptable to remain in a culture that stifles a lawyer’s ability to raise issues. In some cases, as alleged with some of the GM lawyers, failure to speak up could literally be a matter of life and death.
I enjoyed this quick read because it reminded me so much of my years in corporate life. Bader’s story can teach all of us, even the non corporate-idealists, valuable lessons about coping and thriving in the business world.
Wednesday, July 2, 2014
FOR ACADEMIC EYES ONLY (practicing readers may be deeply offended by my self-indulgence)
By my count we are in week 7 (out of 12) of "summer"--the time between graduation and when the fall semester resumes. We are more than half-way through this shimmering mirage, this beacon of hopeful productivity, balance, and reprieve. All year long, I think, THIS summer I will...... And now this THIS summer is here, I am feeling concerned about all that hasn't been tended to at work or at home. At least not yet. (And it isn't for lack of trying--75 exams graded, 3 conferences attended, 1 article draft complete, 3 unexpected child illnesses, and 1 empirical study bogged down in the details.)
This is a common refrain of conversations had with fellow academics. It all goes by too quickly and with self-imposed pressure to make the most of it professionally (write two articles for August submission!) and personally (go on exotic travel adventure with family!). By my personal count, I am failing on both fronts. While this is a unique schedule for academics, I think that the promise of summer lures most people from all walks of life into an unrealistic vision of this time that is inevitably filled with the juggling act of travel and work and family and fun. So with 5-6 weeks left, I am taking stock of my writing expectations (maybe that short piece won't get finished THIS summer) and re-prioritizing because I want to feel good when I walk back into the classroom on day 1. Mostly, I just want to avoid feeling like this:
Friday, June 27, 2014
Previously, I have written about making MOOCs more effective and online v. in-person classes. Today, I am writing about MOOCs, online classes in general, and the future of education. This will be a relatively short post because, of course, I don’t know what the future holds. But, after the break, I will take a few guesses based on what we are already seeing.
Tuesday, June 24, 2014
The WVU College of Law's Center for Energy and Sustainable Development is seeking a fellow for 2014-16, and the details are below. As I have written before, the Future of Business is the Future of Energy. Just today, the New York Times Dealbook has an article, Norway’s Sovereign Wealth Fund Ramps Up Investment Plans, which notes:
Norway’s giant sovereign wealth fund said on Tuesday that it would manage its $884 billion portfolio more aggressively over the next three years, taking larger stakes in companies and increasing its real estate portfolio.
. . . .
The fund’s investments have grown increasingly sophisticated under Yngve Slyngstad, the chief executive of Norges Bank Investment Management, who came to the fund in 1998 to build an equity portfolio and became C.E.O. in 2008. Since the end of 2007, equities have increased as a percentage of the portfolio to about 61 percent from 42 percent.
Mr. Slyngstad has also diversified the holdings into smaller companies and into emerging markets, but the stock investments remain concentrated in Europe and North America. The fund’s largest equity holdings are all companies based in Europe, including Nestlé, Novartis, HSBC Holdings, the Vodafone Groupand Royal Dutch Shell.
The fund has been under pressure from environmental groups and some political parties in Norway to shed investments in oil and natural gas and coal companies and to increase its green investments. The government has so far largely resisted. It created a panel of experts this year to study the issue.
Understanding the interplay between energy, finance, and the environment is becoming more and more critical to businesses (and their lawyers). Please share this opportunity with anyone you know who might have an interest in exploring this area.
ENERGY AND SUSTAINABLE DEVELOPMENT LAW
Accepting Applications Until June 30, 2014
West Virginia University College of Law’s Center for Energy and Sustainable Development is now accepting applications for a Fellowship in Energy and Sustainable Development. The fellowship combines the opportunity to work with attorneys, faculty and students at the Center for Energy and Sustainable Development with the opportunity to obtain the WVU Law LL.M. degree in Energy and Sustainable Development Law. The LL.M. program provides a uniquely deep and balanced curriculum in perhaps the nation’s richest natural resource region. The fellowship position involves policy and legal research and writing, and assisting with organizing projects such as conferences and workshops.
The Center for Energy and Sustainable Development
The Center is an energy and environmental public policy and research organization at the WVU College of Law. The Center conducts objective, unbiased research and policy analyses, and focuses on promoting practices that will balance the continuing demand for energy resources—and the associated economic benefits—alongside the need to reduce the environmental impacts of developing the earth’s natural resources. One mission of the Center is to train the next generation of energy and environmental attorneys. The Center benefits from being located on the campus of a major research institution, with expanded opportunities for inter-disciplinary research and an integral role for the Center in providing the policy, legal and regulatory analyses to support the technical research being conducted across the WVU campus.
LL.M. in Energy and Sustainable Development Law
The WVU College of Law LL.M. in Energy and Sustainable Development Law is the only LL.M. program in the United States that provides a balanced curriculum in both energy law and the law of sustainable development. Working with WVUCollege of Law’s Center for Energy and Sustainable Development, LL.M. students will develop the expertise to advise clients and provide leadership on matters covering the full range of energy, environmental and sustainable development law. The LL.M. in Energy and Sustainable Development Law provides a broad and deep offering of courses, experiential learning opportunities, and practical training for every part of the energy sector. Our broad spectrum of courses allows our students to prepare to be lawyers serving energy companies, investors, environmental organizations, landowners, utilities, manufacturing companies, lawmakers, policymakers, regulators and land use professionals.
Energy and Sustainable Development Law Fellow
This fellowship is a part-time (at least twenty hours per week), two-year position from August 2014 through July 2016. The Fellow will receive an annual stipend of $20,000 and tuition remission for the LL.M. program. The Fellow would take 6-7 credits per semester allowing time for part-time work at the Center. The Fellow will further the work of the Center by pursuing research on issues relating to energy and sustainable development law and policy, under the direction of the Center’s Director and the WVU Law faculty associated with the Center. The Fellow will be expected to generate policy-oriented written work to be published through the Center and other venues such as law journals. The Fellow will also assist with projects relating to the Center’s programs, including organizing conferences and other events, and public education and outreach efforts. Efforts will be made to match project assignments with the Fellow’s interest.
Candidates should possess a J.D.; a strong academic record; excellent analytical and writing skills; a demonstrated interest and background in energy, sustainability or environmental law and policy; and admission to the LL.M. program at West Virginia University College of Law (application for LL.M. admission can occur concurrently with the fellowship application).
Applicants should apply to Samatha.Stefanov@mail.wvu.edu. Please submit a letter discussing qualifications and interests, a resume, a law school transcript, a recent writing sample and contact information for three references.
We are now accepting applications. The application deadline is June 30, 2014(concurrent with the deadline for admission to the LL.M. program) or until the post is filled.
Visit our website at http://energy.law.wvu.edu/ for more information about our programs.
West Virginia University College of Law is an equal opportunity employer and has a special interest in enriching its intellectual environment through further diversifying the range of perspectives represented by its faculty and teaching staff.
Friday, June 20, 2014
I’ve recently returned from taking a course on negotiation at Harvard Law School. This was an in-person course where I was a student, which gives me something to compare my MOOC experiences to as I address the topic of online v. in-person classes. I provide a few of my thoughts on the topic after the break.
Friday, June 6, 2014
If you were designing a massive open online course (a "MOOC"), how would you make it as effective as possible?
This week I am not looking at how MOOCs compare to in-person courses, but rather I am looking at how various MOOCs compare to one another.
A few of my thoughts are below.
Studio Filming. Some of the earlier MOOCs, like Ben Polak's Game Theory class at Yale, simply set a camera in the room and recorded the class. Even with a dynamic professor like Polak, this strategy did not seem to fit the medium well. Later MOOCs, like Northwestern University's Law & Entrepreneurship course, were filmed specially for the MOOC, in what appears to be a studio of sorts. The studio, edited versions of a course seem to produce a much more efficient and engaging experience. To increase engagement even further, some have asked whether celebrities like Matt Damon should teach MOOCs (presumably from a script prepared by professors in the field)...or maybe professors should take acting classes.
Deadlines and Certificates. It is well-known that the completion rate for MOOCs is miserable. The completion rate has been reported as less than 7%. I imagine that rate would increase significantly if the online courses were not free. Also, while I have not seen the data, I think MOOCs with deadlines for various sections of the course and courses with certificates encourage students to stay on track and finish classes they start.
Assessments. I preferred the MOOCs that had online questions as you went along with the video lectures (every 10-15 minutes) rather than those that just had questions at the end, but this can be overdone if it cuts up the flow of the lecture too much. I did not mind if the MOOC had questions during both the presentations and at the end of the unit, and it was probably good to be tested on the same material twice.
Focused Discussion Boards. The discussion boards I have seen on MOOCs seem to be mostly a waste of time, at least the way the vast majority of the boards are currently configured. The discussion boards are mostly the blind leading the blind and there is too much noise and too little value. Perhaps the discussion boards could be divided by geographic location or level of education. I’d be interested in a discussion board of MOOC users in middle Tennessee (perhaps the group would meet in person once or twice) or in a discussion board of academics from around the world. Perhaps they could still have the “all-comers” discussion board for those who wanted to engage with the entire class, but I would have found a more limited and selected group to be more useful.
Next week, I will talk about MOOCs v. In-Person Courses. The New York Times recently looked at this issue in the context of Harvard Business School; I will dig into the issue and the article next week.
Friday, May 30, 2014
Last year, Harvard Business School Professor Clayton Christensen said “15 years from now half of US universities may be in bankruptcy.”
So, I guess half of our schools have about 14 more years to go, according to Christensen.
At least part of the reason for Clayton Christensen’s prediction is the rise of online education, including so-called “massive open online courses” or “MOOCs.”
Recently, I completed a few MOOCs, mostly because I wanted to learn about MOOCs first-hand. I also picked subjects that interested me.
The courses I took were:
I will share some of my thoughts on MOOCs during my normal Friday posting slot, in three installments: (1) Effective MOOCs? (2) MOOCs v. In-Person Courses, and (3) MOOCs and the Future of Higher Education.
Thursday, May 29, 2014
Babson College (near Boston, MA), well-known for their entrepreneurship program, recently posted a tenure track assistant or associate professor of business law position.
Wednesday, May 28, 2014
Tomorrow kicks off the 2014 Law & Society Annual meeting in Minneapolis, MN. Law & Society is a big tent conference that includes legal scholars of all areas, anthropologists, sociologists, economists, and the list goes on and on. A group of female corporate law scholars, of which I am a part, organizes several corporate-law panels. The result is that we have a mini- business law conference of our own each year. Below is a preview of the schedule...please join us for any and all panels listed below.
0575 Corp Governance & Locus of Power
U. St. Thomas MSL 458
Participants: Tamara Belinfanti, Jayne Barnard, Megan Shaner, Elizabeth Noweiki, and Christina Sautter
1412 Empirical Examinations of Corporate Law
U. St. Thomas MSL 458
Participants: Elisabeth De Fontenay, Connie Wagner, Lynne Dallas, Diane Dick & Cathy Hwang
1468 Theorizing Corp. Law
U. St. Thomas MSL 458
Participants: Elizabeth Pollman, Sarah Haan, Marcia Narine, Charlotte Garden, and Christyne Vachon
1:00 Business Meeting Board Rm 3
Roundtable on SEC Authority
Participants: Christyne Vachon, Elizabeth Pollman, Joan Heminway, Donna Nagy, Hilary Allen
1473 Emerging International Questions in Corp. Law
U. St. Thomas MSL 458
Participants: Sarah Dadush, Melissa Durkee, Marleen O'Conner, Hilary Allen, and Kish Vinayagamoorthy
1479 Examining Market Actors
U. St. Thomas MSL 321
Participants: Summer Kim, Anita Krug, Christina Sautter, Dana Brackman, and Anne Tucker
1474 Market Info. & Mandatory Disclosures
U. St. Thomas MSL 321
Participants: Donna Nagy, Joan Heminway, Wendy Couture, and Anne Tucker
Friday, May 23, 2014
Much has been written about the protests at various schools over proposed commencement speakers. I am not sure I have much original to add to the many thoughts that have been shared on the issue (See, e.g., Jonathan Adler (Case Western), The Volokh Conspiracy; Stephen Carter (Yale), Bloomberg; Glenn Harlan Reynolds (Tennessee), USA Today; Editorial Board, Washington Post), but the controversy did make me think of the dystopian society in The Giver where “Sameness” rules.
One of my younger sisters recently accepted a job with Walden Media, which is producing the upcoming film version of The Giver with The Weinstein Company (shameless plug - in theatres August 15, 2014). My sister was amazed that I hadn’t read The Giver, as it is supposedly regular middle school reading, but it looks like the book (published in 1993) was not in the curriculum in time for me. Yes, I feel older every day.
Anyway, in a single day a few weeks ago, I read a borrowed copy of The Giver, which was a nice break from legal treatises and law review articles. While I understand the “Elders” in The Giver were trying to protect people by ridding the community of differences, pain, conflict, and ridicule, it made for a shallow existence.
Some of my most valuable moments in school occurred when I faced views I disagreed with and had to grapple with them. As a professor, the most valuable conversations are often those with knowledgeable people with opposing opinions and ideas. Going forward, I hope we will encourage engagement with those who see things differently than we do and continue the search for a more nuanced understanding of complex issues.
Thursday, May 22, 2014
Two of my former colleagues at King & Spalding LLP, Jaron Brown and Tyler Giles, sent me their recently published book, Stock Purchase Agreements Line by Line. Jaron Brown made partner in King & Spalding’s M&A group before moving in-house to Novelis, Inc. Tyler Giles moved in-house earlier in his career (to Equifax, Inc.) and has since moved back to law firm life as a partner at FisherBroyles LLP.
The book appears aimed at practitioners, but it could also be a valuable resource for those who teach M&A or drafting courses. The book includes various practical pointers for drafting typical provisions in a stock purchase agreement and, as the title suggests, goes through an SPA line by line. The authors are true experts in their subject matter, and I look forward to using the book.
Tuesday, May 20, 2014
The New York Times ran two articles this week about administrator and executive pay that struck a chord with me. One piece was about a new report linking student debt and highly paid university leaders. The article discusses a study, “The One Percent at State U: How University Presidents Profit from Rising Student Debt and Low-Wage Faculty Labor.” The study reviewed “the relationship between executive pay, student debt and low-wage faculty labor at the 25 top-paying public universities.”
Then-Ohio State President E. Gordon Gee was the highest-paid public university president for the time period review. The study found that
Ohio State was No. 1 on the list of what it called the most unequal public universities. The report found that from fiscal 2010 to fiscal 2012, Ohio State paid Mr. Gee a total of $5.9 million. [$2.95 million per year.] During the same period, it said, the university hired 670 new administrators, 498 contingent and part-time faculty — and 45 permanent faculty members. Student debt at Ohio State grew 23 percent faster than the national average during that time, the report found.
[In the interest of full disclosure, I should note that President Gee is the president of my institution, for the second time, and he’s my neighbor. He also makes considerably less money here.]
The other article was about the health care industry, titled: Medicine’s Top Earners Are Not the M.D.s. That article reports that doctors, “the most highly trained members in the industry’s work force,” are in the middle of the pay scale for medical salaries. The article explains:
That is because the biggest bucks are currently earned not through the delivery of care, but from overseeing the business of medicine.
The base pay of insurance executives, hospital executives and even hospital administrators often far outstrips doctors’ salaries, according to an analysis performed for The New York Times by Compdata Surveys: $584,000 on average for an insurance chief executive officer, $386,000 for a hospital C.E.O. and $237,000 for a hospital administrator, compared with $306,000 for a surgeon and $185,000 for a general doctor.
And those numbers almost certainly understate the payment gap, since top executives frequently earn the bulk of their income in nonsalary compensation.
Is there a place where it isn't the case that administrators make more than those actually carrying out the endeavor? Maybe sports and entertainment, to a degree. There has been a significant change in those areas over the past 30 or so years. Owners (and production entities) often still make tons of money, but top player salaries often dwarf those of key executives, coaches, and managers. That was not always the case. Take the NBA for example. The average NBA salary in 1970 was $35,000 (equal to about $207,000 today.) Today’s average salary: $5 million. Actors and musicians take home a lot more than they used to, also, at least among those at the top.
I am not one to bash educational administrators. I have been one, so that may be part of it, but even before that, I appreciated that there are things that need to happen to deliver the full educational experience that are not part of the classroom. Still, it also seems that the number of people who are there to support the delivery of services, like education and medicine, continue to grow at an absurd rate. Even counting contingent and part-time faculty, Ohio State hired more than 1.23 new administrators for every new teacher in the test period.
Law faculty members can legitimately disagree about the best way to educate law students. But our goal should be to provide the best education we can, within the cost constraints we face. If professors at some law schools don’t take that responsibility seriously, we might lose students to schools focusing more on enrollment than education. If so, it’s sad for the profession, but at least we’ll go down fighting for what we know is right.
The same is true at the administrative level in law schools. We should commit to allocating resources to administrative support that supports the educational process of preparing students for practice and for ensuring students actually get to practice, if that is what they seek. This is often true for areas like career services, bar passage, and experiential learning. We should be educating students to be able to be good lawyers and sound professionals, but we also need to help ensure they have things they need to practice (e.g., bar admission) and the ability to practice (i.e., a job).
Sometimes that means new administrators in new or expanded roles, but that may mean reallocating resources from one area to another rather than adding new roles. The challenge, of course, is knowing whether the new administrative hires are delivering services that our students need or are they jobs that are serving the institution at the expense of our students. All institutions need to make a serious attempt to answer that question because it's not just about the number of administrators. It's also about what those administrators do.
Doing what’s right for our students is not always the same as doing what they want. Still, as faculty and administrators, we also need to be clear that doing what we want is often not the same as doing what is best for our students.
Thursday, May 15, 2014
1) I was not the only person who went to law school because I was terrified of math and accounting. Many of my students did too, which made teaching this required course much harder even after I explained to them how much accounting I actually had to understand as a litigator and in-house counsel.
2) I will always make class participation count toward the grade. Apparently paying tens of thousands of dollars a year for an education is not enough to make some students read their extremely expensive textbooks. A 20% class participation grade is a great incentive. Similarly, I will never allow laptops in the classroom. The subject matter is tough enough without the distraction of Instagram, Facebook and buying shoes on Zappos.
3) Students come to a required course with a wide range of backgrounds- some have never written a check and others have traded in stocks since they were teenagers and use Bitcoin. Teaching to the middle is essential.
4) As I suspected, when students are allowed to use an outline for an exam, they won't study as hard or as thoroughly, and I will grade harder.
5) Never underestimate how little many students know about the basics of how businesses operate. No matter how smart they are, many students have simply had no exposure to any kind of business. For some of them it's almost like taking civil procedure all over again in terms of difficulty. (I taught that for the first time too).
6) Balanced public policy discussions can get even the quietest students to participate. On the last day of class we debated the purpose of the corporation using benefit corporations, Citizens United and Hobby Lobby as vehicles for discussion. They did all of the readings and watched the assigned videos for class, leading to some of the richest discussion of the year.
7) Law students say they hate to work in groups, but many of them thrive and take leadership roles they wouldn't normally assume, especially when they know that this work also counts toward their class participation grade. They also learn to take risks in small group discussion that they might not normally take in front of the whole class.
8) Using a game for a review works really well. I used a modified Jeopardy format and allowed groups to work in teams. The competitive nature of the students came out and it also provided a more interesting and lively review than the standard lecture.
9) It's really important to match your textbook to teaching style, learning objectives and type of student.
10) Even the most "terrified" law student can learn to like business associations. I have had several students email me to say they miss the course because they have no one with whom to discuss current business issues. That warms my heart.
There are a number of things I will change next semester. I'm looking forward to learning from more seasoned business law professors at the Emory Conference on Teaching Transactional Law in 2 weeks.
Wednesday, May 14, 2014
Before I went to law school, I worked in the video game industry, first for the industry trade association, the Interactive Digital Software Association (now known as the Entertainment Software Association). From there I moved to public relations for the public relations firm Golin/Harris in Los Angeles where my work was focused on product launches for Nintendo. (This was from 1998-2000.) In those jobs, I had the chance to work with some amazing people (and clients), and the experience has served me well, even as I went on to become a lawyer and professor.
One of those people was the managing director of the Los Angeles Golin/Harris office when I was hired, Fred Cook, who is now the CEO of Golin/Harris. Fred recently wrote a book that has caught the attention of the business world and is a top-25 book for corporate customers according to 800-CEO-READ. His book is Improvise: Unconventional Career Advice from an Unlikely CEO, and it’s worth a look.
Here’s an excerpt:
People entering the business world today are a commodity. They’ve gone to the same schools, taken the same courses, read the same books, and watched the same movies. Every summer they’ve dutifully worked at internships in their chosen field in hopes of landing the perfect job the day they graduate from college.
. . . .
While a college education is a prerequisite for most jobs, a life education should also be required. School delivers information. Life delivers ideas. Ideas that drive business. Twitter was an idea. Red Bull was an idea. South Park was an idea.
When I participate on industry panels, someone in the audience always asks what attributes make for a successful employee. My fellow panelists rightly answer that they’re looking for skilled writers, articulate communicators, and aggressive self-starters. My response? I would trade ten of the above for one person with a big idea. But brilliant ideas aren’t created in a vacuum. They’re formed by the experiences we have and the people we meet.
As usual, what Fred is talking about here is broader than just business or public relations. It applies to business lawyers, and non-business lawyers, and law professors, and pretty much everyone else who has a life to live and goals for a fulfilling career. We all have the chance to find our passion, if we’re willing to live, take chances, and find out what we are capable of doing.
Fred’s unique path to being a CEO is rather similar to my path to becoming a law professor in that it would be reasonable to call me an “unlikely law professor.” I was a mostly terrible undergraduate student at three major universities, and I did not go to a top-14 law school. I did well in law school (and practice) and that made it such that when I went on the job market a leading business law academic told me that my candidacy was “plausible.” And so it was. Fred is an unlikely CEO, perhaps, but he is most certainly an appropriate one. I like to think the same is true for me in my role.
My life experiences helped me in practice and helped me get my job as a law professor, and those experiences continue to help me as a lawyer, a scholar, and a teacher. By having had a career outside the law, I have additional experiences that inform my thinking about the law and the legal profession. I know (among other things) what it means to hire and fire people, make media calls, and schedule caterers for huge events. Of course, lawyers can do these things, too, but it’s different as a lawyer.
Beyond that, the people you meet along the way inform you, and guide you, and help you see the kind of person you want to be. I’m thankful for the large number of good people who have been a part of my work-life experience so far, and Fred is one of those people. I’m glad he has written a book that will share some of his insight with a much broader audience. Check it out.