Friday, August 29, 2014
CALIFORNIA WESTERN SCHOOL OF LAW in San Diego invites applications for an entry-level, tenure-track faculty position to begin in the fall of 2015. Our curricular needs are in Family Law, Business Law, and Clinical Teaching. We are particularly, though not exclusively, interested in candidates who are interested in teaching in our Clinical Internship Program, as well as in one of the above-mentioned subject areas. Candidates who would contribute to the diversity of our faculty are strongly encouraged to apply. Interested candidates should email their materials to Professor Scott Ehrlich, Chair of the Faculty Appointments Committee, at email@example.com. California Western is San Diego’s oldest law school. We are an independent, ABA-approved, not-for-profit law school committed to producing practice-ready lawyers. California Western is an equal opportunity employer.
Rebecca Schuman authored a recent article in Slate entitled Syllabus Tyrannus: The decline and fall of the American university is written in 25-page course syllabi.
In the article Schuman complains that in the last twenty years syllabi have grown from 1-2 page simple documents with only the course location, required books, and assignments to “Ten, 15, even 20 pages of policies, rubrics, and required administrative boilerplate, some so ludicrous (“course-specific expected learning outcomes”) that I myself have never actually read parts of my own syllabi all the way through.”
While I won’t go as far as Professor Paul Horwitz goes in criticizing Schuman’s writing, I do want to push back a bit on her critique of “course-specific expected learning outcomes.”
I admit that bloated syllabi can be a bit cumbersome, but drafting what we at Belmont call “course objectives” can be a helpful process and can lead to important changes in the course. Believe it or not, each semester I look at my course objectives, evaluate whether they were met, and revise my courses as necessary. My course objectives have reminded me that I shouldn’t drop that undergraduate group presentation assignment, no matter how difficult it gets logistically. My course objectives have also reminded me that I just can’t switch to all multiple-choice exams, even if those tests are incredibly common in undergraduate courses today. (To be fair to those who teach undergraduate courses, they typically have 4-8 assessments in a course as opposed to 1-2 in a law school course).
Anyway, I think some of Schuman’s comments on syllabi bloat are valid, but this increase in disclosure is seen throughout our society as shown in Ben-Shahar & Schneider’s More than You Wanted to Know. While some of the disclosures may be a waste of time and resources, I found the drafting of course objectives helpful and think it will benefit the students through the more thoughtful structure of my courses (even if the students do not take the time to read the objectives themselves).
Finally and somewhat related, Professor Jennifer Bard notes (with some helpful links) that the ABA is now requiring law schools to draft learning outcomes. If law schools take this process seriously, I think it could be a useful exercise. If law schools just see it as another drain on resources and complete it mindlessly, then it is unlikely that those law schools or their students will benefit.
Monday, August 25, 2014
Students often ask me how they can improve their performance in my classes. There’s one thing they can do that will increase their learning with no additional work on their part: stop multitasking.
Multitasking is bad. The research is clear: students, even today’s students who grew up multitasking, learn less when they’re doing other things at the same time. See, for example, here and here. It’s a very simple point: if you surf the Internet, email, text, instant message, talk on the phone, or watch TV while you’re studying (or in the classroom), you learn less. Effective study (and work) requires focus.
It's such an easy, effortless way to improve learning: just focus exclusively on what you’re reading, without any distractions. Turn off instant messaging. Close the web browser and the email program. Silence your phone. Turn off the TV.
I make that point to my students at the beginning of my classes. but, for some of them, it just doesn’t sink in. I guess that shouldn't surprise me: people text while they're driving even as the casualties continue to mount.
I recently found an exercise on the Internet that illustrates the point in a straightforward, simple way. I’m going to distribute it to my students this year (with the author’s permission) and see if it helps. (For what it’s worth, it took me 34 seconds to complete the exercise without multitasking and 52 seconds to do it multitasking.)
Friday, August 22, 2014
I love a good debate and appreciate the opportunity (provided by Professor Bainbridge’s thoughtful post yesterday) to engage a bit more deeply on the thesis of Wednesday’s post suggesting an approach for how to incorporate Citizens United and Hobby Lobby into the survey BA/Corporations course.
By way of recap and ruthless summary, Stephen Bainbridge wants nothing to do with these issues (or other constitutional law questions) in his course because of the:
- Existing emphasis of public law over private law and resulting imbalance in law school curriculum;
- False impression that constitutional law is the holy grail of law teaching and practice;
- These cases present a hornet’s nest of controversial and divisive topics; and
- Coverage constraints. The menu options of what we can (should) teach is already more ambitious than time allows.
And to no surprise to anyone, anywhere: Stephen Bainbridge is right on the money with all of these points.
As a survey course and one that almost every student in my law school (Georgia State) takes, I feel a responsibility to provide context for the subject matter that we teach and to do my best to “hook” students who didn’t come to my class with an interest in corporate law.
First, hear me now when I say that corporate law matters. It matters to the business owners who form and operate a firm. It matters to the individuals and other businesses who interact with the firm as a supplier or customer or creditor or employee. These first two points are significantly incorporated into the traditional BA syllabus. Corporate law also matters to general members of society because corporations wield tremendous power in elections, in lobbying (regulatory capture anyone?), in shaping retirement savings, in religious and reproductive rights debates and setting other cultural norms around issues like corruption, sustainability, living wage, etc. Multi-national corporations with ubiquitous brand recognition aren’t the only powerful actors. The Hobby Lobby ruling tells us that those creatures governed largely by private law—the closely held corporation—also play a major role. To teach corporate law in a vacuum that ignores this broader context is to teach nuclear physics without discussing the atom bomb and its consequences (if I can use hyperbole). Should the broader context be the focus of the class? Absolutely not. Can it be woven into context setting discussions or used as a way to elicit student participation? In my class at least.
Second, not every student in BA enrolled out of pure self-interest; not everyone has a business background. I consider my course to be a great equalizer in law school: we take the health sciences majors, the B-schoolers, the political science and the anthropology kids and at the end of the semester everyone can explain basic financial concepts, the different menu options of firms, proxy fights, and even poison pills. We do this best when we can engage all of the students, which sometimes means helping students see why it might matter to them and how the subject connects with the things that they care about. For some that will be the clever ways you can use private agreements to shape outcomes and hedge against risk, for others it will be seeing why corporate law matters even if you don’t care about corporations (see paragraph above).
My last point is that being an effective classroom teacher generally requires a sense of self-awareness about your comfort zone, your strengths, and your weaknesses (among other things). I have lots of colleagues, at GSU and other institutions (many of them BLPB editors), whom I admire, but if I tried to teach class the way that they did, I would fall short of the mark. We teach to our own strengths and infuse classes with a sense of our own personality and passion. I don’t think I have convinced anyone not previously inclined to incorporate these materials; and I wonder if Stephen has caused any course corrections with his thoughts. We may have just reinforced the positions that you already held. Either way, happy teaching to all readers who have started or are preparing to start the new semester and the new school year.
On Wednesday, in my first set of fall semester classes, I mentioned Dweck’s descriptions of “fixed mindset” and “growth mindset” because I thought it might be helpful for students to consider.
Dweck says that those with a “fixed mindset” embrace a static view of intelligence, avoid challenges, get defensive in the face of obstacles and criticism, and are threatened by the success of others. People with a “fixed mindset” view failure as a negative verdict on their worth as a person. (pg. 244-46).
In contrast, Dweck says that those with a “growth mindset” believe that intelligence can be developed, embrace challenges, persist and learn in the face of obstacles and criticism, and are inspired by the success of others. People with a “growth mindset” view failure as an opportunity to learn and improve. (pg. 244-46).
To be clear, I (and Dweck) realize that there are limits to personal growth – otherwise I would be at an NFL practice right now instead of blogging – but it is helpful to realize that we can generally improve substantially with effort.
In the long run, Dweck finds that those with a “growth mindset” tend to outperform those with a “fixed mindset.” Dweck also finds evidence that people can change their dominant mindset over time.
I see students with both types of mindsets. You can spot the “fixed mindset” student easily – “I am not a C student!” The “growth mindset” student is just as easy to identify – “I got a C on this exam. I’d like to meet with you about my test and talk about how I can improve.”
Students are not the only ones who can learn from Dweck’s work. When faced with criticism, defensiveness feels natural to me, but I am, slowly, learning to unpack the criticism and look for lessons that could help me grow and improve.
Tuesday, August 19, 2014
At West Virginia University College of Law, we started classes yesterday, and I taught my first classes of the year: Energy Law in the morning and Business Organizations in the afternoon. As I do with a new year coming, I updated and revised my Business Organizations course for the fall. Last year, I moved over to using Unicorporated Business Entities, of which I am a co-author. I have my own corporations materials that I use to supplement the book so that I cover the full scope of agency, partnerships, LLCs, and corporations. So far, it's worked pretty well. I spent several years with Klein, Ramseyer and Bainbridge's Business Associations, Cases and Materials on Agency, Partnerships, and Corporations (KRB), which is a great casebook, in its own right.
I did not make the change merely (or even mostly) because I am a co-author. I made the change because I like the structure we use in our book. I had been trying to work with KRB in my structure, but this book is designed to teach in with the organization I prefer, which is more topical than entity by entity. I'll note that a little while ago, my co-blogger Steve Bradford asked, "Are We Teaching Business Associations Backwards?" Steve Bainbridge said, "No." He explained,
I've tried that approach twice. Once, when I was very young, using photocopied materials I cut and pasted from casebook drafts the authors kindly allowed me to use. Once by jumping around Klein, Ramseyer, and Bainbridge. Both times it was a disaster. Students found it very confusing (and boy did my evaluations show it!). It actually took more time than the entity by entity approach, because I ended up having to do a lot of review (e.g., "you'll remember from 2 weeks ago when we discussed LLCs most recently that ...."). There actually isn't all that much topic overlap. Among corporations, for example, you've got the business judgment rule, derivative suits, "duty" of good faith, executive compensation, the special rules for close corporations, proxies, and so on, most of which either don't apply to LLCs etc.... or don't deserve duplicative treatment.
I have great respect for Prof. Bainbridge, and his writing has influenced me greatly, but (not surprisingly), I come out more closely aligned with my perception of Larry Ribstein on such issues, and with Jeff Lipshaw, who commented,
I disagree about the lack of topic overlap, and suspect Larry Ribstein is raging about this in BA Heaven right now. . . .
This may reflect differences among student populations, but the traditional corporate law course, focusing primarily on public corporations, is less pertinent in many schools where students are unlikely to be doing that kind of work when they graduate. It's far more likely that they'll need to be able to explain to a client why the appropriate business form is a corporation or an LLC, and what the topical differences between them are.
I completely agree, and I would go another step to say that I find the duplication to be a valuable reinforcement mechanism that is worth (what I have seen as limited) extra time. I am teaching a 4-credit course, though, which gives me time I never had in my prior institution's 3-credit version.
One thing I am doing differently this year is my first assignment, which seeks to build on what I see as a need for students here. That is, I think many of them will need to be able to explain entity differences and help clients select the right option.
I had my students fill out the form for a West Virginia Limited Liability Company (PDF here). I had a few goals. First, I don't like to have students leave any of my classes without handling at least some of the forms or other documents they are likely to encounter in practice. Second, I did it without any instruction this time (I have used similar forms later in the course) because I thought it would help me tee up an introduction to all this issues I want them thinking about with regard to entity choice. (It did.) Finally, I like getting students to see the connection between the form and the statute. We can link though and see why the form requires certain issues, discuss waivable and nonwaivable provisions, and talk about things like entity purpose, freedom of contract, and the limits of limited liability.
If nothing else, the change kept things fresh for me. I welcome any comments and suggestions on any of this, and I wish everyone a great new academic year.
Friday, August 15, 2014
Over at PrawfsBlawg, on a post comparing the SEALS and AALS conferences, an anonymous commenter questioned the value of academic conferences.
In this economic environment, many schools are tightening their belts. A number of schools have made cuts to funds for travel and professional development.
Below, I list some of the areas in which conferences can provide benefits.
Teaching. At most conferences I attend, I attend at least one panel on pedagogy. In addition, many of the panels provide new material for classes. Also, fellow professors may be more willing to share teaching materials, which can be invaluable, if they have met you in person at a conference.
Service. Conferences are often the hub for discipline-related service. Many, if not most, of my external service opportunities have come from other professors I met at conferences.
Research. You can receive excellent comments on your papers at conferences and are much more likely to get other professors to review your work if you have met them in person. Also, a number of the people who have cited my work are people I met at conferences.
Professional Development. Much of our time as professors is spent with students, who are usually not experts in our subject areas. Even most of our colleagues are not experts in our specific research areas. Conferences give professors a chance to test themselves against other experts in their areas, which can lead to significant professional development.
Inspiration. I tend to return from conferences inspired and refreshed. Seeing the successes of my colleagues at other schools encourages me to be more efficient and improve in all areas.
Community. Academic community often grows from conferences. Blogs, social media, listservs, e-mail, and phone calls can sustain the community, but I think it is relatively difficult to be truly plugged into the broader academic community without at least a few in-person meetings with other professors.
Compensation. Frankly, I count funding for conferences as part of my compensation. A school without funding for conferences would likely have to pay more in salary if it did not provide funding for conferences. Also, payment for conferences usually amounts to a relatively small portion of total faculty compensation.
Rankings. Many school rankings depend, at least in part, on peer reputation. In the U.S. News law school rankings, for example, peer reputation is actually the single most heavily weighted factor. I don’t think schools should chase rankings just for the sake of the rankings, but improving rankings can impact things that matter (recruiting intelligent students, attracting recruiters to campus, and making (generous) alums happy, etc.) I’m not sure how much schools spend on those glossy brochures they send to other schools, chasing peer reputation, but I am much more likely to think well of another school if I hear a good presentation from one of their faculty members than if I see an impressive looking pamphlet in my mailbox.
Of course, there are probably ways to cut spending on academic conferences without losing the above benefits and I am open to those ideas.
Related to this post, I am interested in how other schools divvy up travel funds (and any details about your school's approach to travel funds that you can share). At Belmont, we apply to our assigned associate dean to get funding for any conference we wish to attend. Except in the most rare circumstances, you will not get funding if you are not presenting a paper. I am not sure what the limits for travel funding are at Belmont, but they have been generous in granting my requests so far. I know some schools grant professors a set amount of travel funds each year; this seems like a good way to encourage careful spending and allow better planning by professors, but it does not address the variation in professor productivity (unless the amount granted is pegged to recent publications).
Thursday, August 14, 2014
A brief ten-question survey is one of the most effective tools I have used in my three years as an academic. I first used one when teaching professional responsibility and then used it for my employment law, corporate governance seminar, and business associations courses. I’m using it for the first time with my civil procedure students. I count class participation in all of my classes for a portion of their grade, and responding to the survey link by the first day of class is their first “A” or first “F” of the semester.
I use survey monkey but other services would work as well. The survey serves a number of uses. First, I will get an idea of how many students actually read my emails before next Tuesday’s first day of class—interestingly as of Thursday morning, 62% of my incoming 1Ls have completed their survey, while 42% of the BA students have done theirs. Second, my BA students work in mini law firms for a number of drafting exercises and simulations. The students can pick their own firms, but I designate a “financial expert” to each firm based upon the survey responses. I remind them that they should never leave the classroom thinking they are “experts” in the real world-- they are just experts compared to the "terrified." I use this tactic to avoid having all of the MBAs and bitcoin owners (yes, I had some last year) sit together and unintentionally intimidate the other firms with their perceived advantage.
Third, I get an idea of how students have learned about business prior to BA and what news sources they use. Fourth, I tailor my remarks and hypotheticals (when appropriate) to reach the litigators or those who plan to specialize in nontransactional work. I want them to know how BA will relate to the practice areas they think they will enter. I tell them on the first day that I went to Columbia for college because it didn’t have a math requirement and I planned to do public interest work, went to law school because the LSAT was the only graduate school entrance exam that had no math on it (ok- my professor Jack Greenberg at Columbia also said I should go). I tell them that I became a litigator to avoid business and spent my first years as a non-corporate person having to learn about FASB and the definition of a "security" because I was a big-firm commercial litigator. I tell them that when I went in-house I had to take accounting for lawyers and although I don’t love the accounting, we will discuss some basics because they never know where they will end up. Many of them mat even represent entrepreneurs. My first day speech is meant to reach the 79% of my students (as of this morning) who say they want to be litigators.
Finally, I feel as though I’m not walking in on the first day completely ignorant of my students. I often use the names or storylines from popular shows or movies in class when I can. The show Suits, by the way, is the runaway favorite for my 1Ls and I know my BA students watch it as well. My BA survey questions are below. If you are interested in seeing my Civ Pro questions, email me at firstname.lastname@example.org.
1. Please enter your first and last name. If your name is hard to pronounce, please provide a phonetic spelling as well (rhymes with ___ or NUH-RHINE for Narine).
2. Have you had any experience working in a legal setting (firm, court, agency, clinic, other) BEFORE coming to law school or DURING law school? Please answer yes or no and then describe the experience if you answered "yes".
a) Yes- please complete comment box
Other (please specify)
3. Which type of practice appeals to you more?
a) Planning (e.g. transactional)
b) Dispute resolution (e.g. litigation)
c) I do not plan to practice law after graduation
Other (please specify)
4. Have you or a close family member ever owned a business?
Yes, and I have been completely involved in management and/or business discussions
Yes, and I have been somewhat or occasionally involved in management and/or business discussions
Yes, but I have had no involvement in management and/or business discussions
5. Do you own any stocks, bonds, other types of securities (individually or through a mutual fund or trust) or bitcoin?
6. Choose up to THREE fields of law in which you would most prefer to practice
b) civil rights/constitutional law
c) corporate and securities law (including business planning)
d) criminal law (prosecution)
e) criminal law (defense)
f) labor and employment law
g) trusts and estates
h) family law
i) health law
k) intellectual property
l) real estate/land use
m) litigation (plaintiff side)
n) litigation (defense side)
o) sports and entertainment
q) other, please describe
Other (please specify)
7. Do you have an MBA, business, finance, accounting, or economics degree?
8. Do you read any business related newspapers, magazines or blogs? Do you watch any business-related television shows or listen to podcasts or radio shows? If so, please name them.
9. Other than to pass the class, what are your learning goals for this course? Are there particular topics that interest or frighten you?
10. Please describe your level of familiarity with business, finance and/or accounting.
I am an expert and could teach this class
I have some experience, but could use a refresher
I have no experience, but am willing to learn
I am completely terrified
My goals this year: help my students think like business people so that they can add value, help them pass the bar, and most important, help them realize that business isn't so terrifying. Now I just have to get my Civ Pro students to realize that the show Franklin and Bash is probably not the best way to learn about legal practice.
August 14, 2014 in Business Associations, Corporate Governance, Corporations, Current Affairs, Entrepreneurship, Law School, Marcia Narine, Securities Regulation, Teaching, Television | Permalink | Comments (3)
Monday, August 4, 2014
"[P]ushing its students to understand business and technology so that they can advise entrepreneurs in coming fields. The school wants them to think of themselves as potential founders of start-ups as well, and to operate fluidly in a legal environment that is being transformed by technology."
The article also highlights University of Colorado's Tech Lawyer Accelerator.
Fascinating stuff. What is your school doing, if anything, on this front?
Many of us are in the process of (perhaps frantically) wrapping up our summer scholarly activity and re-focusing our primary professional attention on teaching. As always, I am using the annual conference sponsored by the Southeastern Association of Law Schools (SEALS) to help me make this transition. Yesterday, I attended a discussion session led by law school associate deans and faculty who focus on faculty development--scholarship and teaching. It was an incredibly interesting and wide-ranging discussion.
Part of the conversation centered around summer research stipends, a topic that has been in the national news a bit over the past few years. Various participants in the discussion session addressed, each from his or her individual institution's vantage point, the reasons for/purposes of summer research stipends (which not every school represented at the session currently has) and how summer stipends actually work or should/could optimally work. I was surprised by the variations in approaches and ideas from school to school. While the individual models are too numerous to capture here, I summarize below the fold some of the top-level points made and thoughts shared during the discussion.
Friday, August 1, 2014
This year, I will be teaching undergraduate, MBA, and law students at Belmont University. As an undergraduate professor, I often advise students considering law school.
I focus on helping prospective law students make an informed decision. Formally or informally, I usually walk the students through a simple cost/benefit analysis. Even with all the information about law schools out there now, most students still need some help navigating.
Usually, I ask prospective law students a lot of questions, including at least some of the ones below.
If readers have constructive additions to my list, please e-mail me or leave a comment. I am always trying to improve my advising.
- Why do you want to go to law school? (The student’s answer can be illuminating. Answers that are essentially – to please my parents or because I don’t know what else to do or because I want to get rich – should cause the student to think a bit harder. I think there is now enough data out there that students can see that there are much better avenues to getting rich than going to law school.)
- Do you understand the total financial cost of going to law school? (See Law School Transparency).
- Do you understand the opportunity cost of going to law school? (There has been a lot written about the financial cost of law school, but the opportunity cost of law school is worthy of more attention. Even if a student receives a full scholarship, they are often giving up $120,000 or more in income over the three years of law school. Also, if the student does not enjoy law school (I enjoyed it, but many don't) then they need to factor in the cost of three painful years.)
- Do you understand the demands of the law school curriculum? (Some weak students are simply not well prepared for the rigors of law school.)
- Do you understand the educational benefits of law school? (While the value of learning to “think like a lawyer” has been called into question by some, critical thinking and writing skills are clearly useful. Whether the benefits are worth the costs is a more difficult question.)
- Do you understand the various career paths of a law graduate? (A number of the career paths taken by law graduates are possible without the costs of a law degree. (E.g., certain government work and many business positions.))
- Do you understand what different types of lawyers do on a daily basis? (Interning for a legal organization (if possible in this economic environment), or at least meeting with a handful of lawyers, can help students better understand what a career in law is actually like. Far too many students get their thoughts on the life of a lawyer from TV shows and movies.)
- Do you understand the bi-modal distribution of entry level lawyer salaries? (Surprisingly, despite valiant efforts of many, quite a few prospective law students are still not aware of the distribution of law graduate salaries).
- Do you know the median salary of graduates of the schools you are looking at and what percentage of graduates actually land jobs as lawyers? (See school's ABA disclosures, e.g., Berkeley Law).
The list is a bit over-focused on the financial side of law school and law practice. Personally, I think finding a career that allows autonomy, mastery, and purpose is more important than finding a career that pays well, but finances should not be overlooked.
These questions are for students who are still not 100% certain they want to go to law school. Once they are informed, and decide that they do want to attend law school, I walk them through things like a proper understanding of the US News Rankings and the strengths and weaknesses of the schools they are considering.
Wednesday, July 30, 2014
While I will miss my friends at the wonderful SEALS conference, I am excited to be attending and presenting at the Academy of Legal Studies in Business (ALSB) conference in Seattle next week.
For the ALSB conference, the organizers have set up a Guidebook App. I am just now exploring all the features, but it looks like an impressive and useful tool.
The App includes:
- The conference program.
- The conference schedule.
- Your schedule. You create your own schedule and can have reminders send to your phone.
- Full text of all the conference papers, organized by subject, author, and title.
- An attendee list, where attendees can share their contact information.
- In-app social networking.
- Information about exhibitors.
- A survey.
- Information about Seattle (restaurants, attractions, etc.)
There is a free version of Guidebook, but it looks like this ALSB Conference App has features of the rather expensive paid plans. The free version is limited to 200 downloads and doesn't appear to allow inclusion of presentation materials. Given the textbook publisher listed at the bottom of the App, I am guessing that the textbook publisher paid at least part of the cost, though that is pure speculation on my part.
While pricey for the paid plans, this might be something for AALS, SEALS, and other large conference organizers to consider for future years. The free version may be useful for smaller conferences.
Tuesday, July 29, 2014
This week, two of my co-bloggers shared some great insights on the revamped American Apparel board of directors. See Marcia Narine quoted in The Guardian article American Apparel adds its first woman to revamped board of directors; Joan Heminway, American Apparel 1, NFL 0. For those not following the American Apparel saga, the New York Times recently reported:
The founder and chief executive of American Apparel, Dov Charney, was fired this week because an internal investigation found that he had misused company money and had allowed an employee to post naked photographs of a former female employee who had sued him, according to a person with knowledge of the investigation.
Beyond the public relations problems surrounding Charney’s departure, American Apparel is struggling financially as sales have dropped dramatically. As an initial step in trying start a turnaround, the company announced four new board members, including the company’s first female director, Colleen Birdnow Brown, former chief executive of Fisher Communications.
When I opened the Guardian article quoting Marcia, I had another article open in the tab next to it from the Washington Post’s On Leadership section: For women and minorities, advocating for diversity has a downside. That article explained:
In corporate America, diversity is about as controversial as motherhood and apple pie. CEOs love to tout the number of women in their upper ranks. Human resource departments like to trumpet their diversity programs in glossy reports.
But a new study finds that for female and minority executives, being seen as an advocate for diversity could actually have a downside. The researchers behind the study, which will be presented at the Academy of Management's annual conference in early August, found that women and minorities who were rated by their peers as being good at managing diverse groups or respecting gender or racial differences also tended to get lower performance ratings. That's because they may be viewed as "selfishly advancing the social standing of their own low-status demographic groups," the researchers write, a no-no when it comes to rating good managers.
Please click below to read more.
Sunday, July 27, 2014
Last year, when many law schools made no new hires, Alabama was one of the most active law schools on the market. Alabama hired a new dean and five new faculty members. It appears that Alabama is looking to hire again this year.
The University of Alabama School of Law is seeking applications from entry level or lateral candidates. They will accept applications from applicants in all subject areas, but have a particular interest in applicants that research and teach in one or more of the following areas:
business law (including enterprise, finance, and/or securities); administrative regulation (including the regulatory state and/or regulated industries or activities); intellectual property (specifically trademark and copyright); and criminal law (including substantive criminal law and/or criminal procedure).
(Emphasis added, for the benefit of our business law readers.)
More information is available here.
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?