Monday, January 26, 2015
PrawfsBlawg has posted its Submission Angsting thread, which prompted me to write this post to ask our readers (including my co-bloggers) two questions:
- In your opinion, what is the ideal date to submit a spring law review article?
- When deciding between offers, how do you evaluate specialty law reviews?
Ideal Submission Date. When I first started as a professor, I heard that March 1 was the date most people thought was the best for spring submissions. The ideal date seems to be moving earlier and earlier, and I have heard February 1 or February 15 mentioned with increasing frequency. Some might suggest not worrying about the submission date -- just submit when your article when it is ready. While I agree that you should wait to submit an article until it is ready (whenever "ready" is...), I have had colleagues who seemed to seriously under-place articles because they submitted at a poor time. Admittedly, most of these professors submitted well outside of the traditional windows.
Evaluating Specialty Law Reviews. The question about how to evaluate specialty law reviews reoccurs every time I submit an article. The conventional wisdom is - find out how your P&T committee values those journals and follow their lead. That is good advice, though I imagine some readers would like to hear how the market, in general, values specialty law reviews. Personally, I have published in a number of specialty law reviews -- for two main reasons -- (1) readership (e.g., I used to see the Delaware Journal of Corporate Law on my judge's desk regularly) and (2) name recognition (the Harvard Business Law Review is probably going to go much further with many readers (and my P&T committee) than many flagship law reviews). I've heard formulas to rank specialty journals like -- take ~25 spots [the PrawfsBlawg post in the update below says +25 to +50] off the publishing school's rank if it is a specialty journal (this doesn't work well when a top journal in your area is published by a low-ranked school) OR the top 10% or so specialty journals in your area are roughly equal to a 31-100 ranked flagship journal; and you should take a top-30 flagship journal over virtually any specialty journal. I know different schools will treat the question of specialty journals differently, and ideally we wouldn't have to play this game (because the articles all end up on WestLaw), but I am truly interested in the different approaches.
Update: On the second question I found this helpful post on PrawfsBlawg from 2011, but I am still interested in other thoughts.
Feel free to share thoughts in the comments, or e-mail me directly.
For the last three years, I have been teaching my Accounting for Lawyers course as a distance education course. It’s only available to students at my law school, but everything except the final exam is online; there are no in-person classes. I think it’s worked well, better than the in-person accounting class I used to teach, but that’s a topic for another day. Today, I want to talk about four things I’ve learned teaching the course.
1. Law students are not used to “learning as they go.”
The typical law school class involves a single end-of-semester exam, and law students get used to pulling things together by cramming at the end of the semester. Almost all of my students read the daily assignments, but many of them, even some of the most conscientious students, really haven’t actively wrestled with the material.
I usually teach by the problem method, and I use books with a large number of problems. I strongly urge students to answer those problems before class. Almost all of my students read the problems before class; many of them think about the problems before class; but it’s clear that few of them have thoroughly worked their way through the problems .
In my online course, assignments are due every week. Students must learn the material as they go, or they won’t be able to do the assignments. Cramming at the end is not an option. They learn in the first couple of weeks that the shallower daily preparation that works in many law school classes won’t work in Accounting. As their study habits change, they learn more, but it requires a real adjustment on their parts.
2. Regular practice and feedback is important.
The educational literature stresses the value of regular practice and feedback (or even regular practice without feedback). I use the problem method in all of my classes because of that. It forces students to apply the materials on a daily basis, with in-class feedback from me. Seeing how much more students learn in my Accounting course, with its regular assignments and feedback, just reinforces that point.
3. If there’s an ambiguity in anything, at least one student will find it.
I didn’t really learn this lesson teaching the online course. It’s obvious every time I grade an exam. No matter how good the casebook, no matter how careful I am in class, some students will manage to misinterpret something. Law students are experts at finding ambiguity. This shouldn’t surprise us; it’s one of the things we teach them to do. The problem is often not due to a failure to read or listen, but a single-minded focus on some isolated statement taken out of context.
In a course like Accounting that has weekly assignments, I don’t have to wait until the final exam to see those misunderstandings, and I can correct them before they do too much damage. But seeing misunderstandings like this on a weekly basis has also made me much more careful in my other classes, more aware of possible ambiguities in the readings and what I say. I would rather over-explain than risk a semester-long misunderstanding.
4. Oral communication is better than written communication, especially for criticism.
In an online course, I’m forced to communicate with my students almost exclusively in writing. Writing, unlike direct, oral communication, is very bad at conveying nuance or sentiment. That difference is especially important when my communication is primarily critical, correcting and evaluating student work.
Students, like most of us (including me), are sensitive to criticism. And, unless one is very careful, they tend to see critical comments as more negative and personal than they are intended to be. As I’m not a particularly careful person when it comes to criticism or anything else (the word “blunderbuss” is relevant), this is problematic.
In person, my true intent comes through more easily. I recently heard, second-hand, a comment from a student who had taken Accounting and was now in one of my in-person classes. He reportedly said, “I thought Professor Bradford was really mean after Accounting, but I like him in this course.”
Thursday, January 22, 2015
I have just returned from Dublin, which may be one of my new favorite cities. For the fifth year in a row, I have had the pleasure of participating as a mentor in the LawWithoutWalls (“LWOW”) program run by University of Miami with sponsorship from the Eversheds law firm. LWOW describes itself as follows:
LawWithoutWalls, devised and led by Michele DeStefano, is a part-virtual, global, multi-disciplinary collaboratory that focuses on tackling the cutting edge issues at the intersection of law, business, technology, and innovation. LawWithoutWalls mission is to accelerate innovation in legal education and practice at the same time. We collaborate with 30 law and business schools and over 450 academics, students, technologists, venture capitalists, entrepreneurs, business professionals, and lawyers from around the world. We seek to change how today’s lawyers approach their practice and how tomorrow’s lawyers are educated and, in so doing, sharpen the skills needed to meet the challenges posed by the economic pressures, technologization, and globalization of the international legal market. We seek to create the future of law, today. Utilizing a blend of virtual and in-person techniques, LawWithoutWalls offers six initiatives: LWOW Student Offerings,LWOW Live, LWOW INC., and LWOW Xed.
I first joined the program as a practitioner mentor and have now served as an academic mentor for two years. Each team has students from law or business school who develop a project of worth addressing a problem in legal education or the legal profession. Mentors include an academic, a practitioner, an entrepreneur, and an LWOW alum.
In the LWOW Live version, the students and mentors meet for the first time in a foreign city (hence the trip to Dublin) and then never see each other in person again until the Conposium, a Shark-Tank like competition in April at the University of Miami, where they present their solution to a venture capitalist, academic, and practitioner in front of a live and virtual audience.
Over the period of a few months the students and mentors, who are all in different cities, work together and meet virtually. Students also attend mandatory weekly thought leader sessions. Past topics have included developments in legal practice around the world and the necessity of a business plan. For many law students, this brings what they learned in Professional Responsibility and Business Associations classes to life. At the Dublin kickoff, audience members watched actual live pitches to venture capitalists from three startups, learned about emotional intelligence and networking from internationally-renowned experts, and started brainstorming on mini projects of worth.
This year, I am coaching a virtual LWOW Compliance team working on a problem submitted by the Ethics Resource Center. My students attend school in London and Hamburg but hail from India and Singapore. My co-mentors include attorneys from Dentons and Holland and Knight. The winner of the LWOW Compliance competition will present their solution to the Ethics Resource Center in front of hundreds of compliance officers. In past years, I have had students in LWOW Live from Brazil, Israel, China, the US, South Africa, and Spain and mentees who served as in-house counsel or who were themselves start-up entrepreneurs or investors. Representatives from the firms that are disrupting the legal profession such as Legal Zoom serve as mentors to teams as well. In the past students have read books by Richard Susskind, who provides a somewhat pessimistic view of the future of the legal profession, but a view that students and mentors should hear.
As I sat through the conference, I remembered some of the takeaways from the AALS sessions in Washington in early January. The theme of that conference was “Legal Education at the Crossroads.” Speakers explained that firms and clients are telling the schools that they need graduates with skills and experience in project management, technology, international exposure, business acumen, emotional intelligence, leadership, and working in teams. Law schools on average don’t stress those skills but LWOW does. Just today, LWOW’s team members were described as "lawyers with solutions." I agree and I’m proud to be involved in shaping those solutions.
Monday, January 19, 2015
Today, unlike most Mondays during the school year, I will not be in the classroom. The University of Tennessee is closed in celebration of the life of Martin Luther King, Jr., our nation's iconic non-violent civil rights leader. Today also is the day that my daughter is in transit back to her college in New York for her last semester as an undergraduate. It seemed only fitting, honoring both occasions, to go out on Friday night with my daughter and my husband to see the movie Selma.
Despite its historical inaccuracies (which have been played out in the public media, e.g., here), the movie is a successful one. Among other things, it spoke to me of the amazing amount that one man can accomplish in a mere 39 years with focus, action, and perseverance. I admittedly felt a bit lazy and ineffectual by comparison.
Selma also reminded me, however, of the near daily opportunities that King had to speak out on matters of public importance. I wondered if there was anything in his teachings that would speak directly to me today. Specifically, I wondered if I could find something he'd said that helped to guide me as a business law professor in the current business law or legal education environment.
Of course, King spoke out against Jim Crow laws, which provided for legal segregation of the races in both businesses and education. But I was looking for something a bit more personal. Then, I found this quotation: "The function of education . . . is to teach one to think intensively and to think critically. . . . Intelligence plus character--that is the goal of true education."
Every U.S. law school, or at least every law school I’m aware of, offers a securities regulation course. But those courses usually focus on the Securities Act of 1933 and the Securities Exchange Act of 1934. A typical securities regulation course covers the definition of security, materiality, the registration of securities offerings under the Securities Act, and liability issues under both the Securities Act and the Exchange Act. If the professor is ambitious, those courses may also cover the regulation of securities markets and broker-dealers.
Almost none of those basic securities regulation courses spends any significant time on the 1940 Acts—the Investment Company Act and the Investment Advisers Act. It’s not because those two statutes are unimportant. A good proportion of American investment is through mutual funds and other regulated investment companies, not to mention hedge funds which depend upon Investment Company Act exemptions. And the investment advisory business is booming. When I attend gatherings of securities lawyers, I’m always amazed at how many of the lawyers present are dealing with issues under the 1940 Acts.
The lack of coverage of the 1940 Acts in the basic securities law course would be acceptable if law schools offered separate, stand-alone courses dealing with those issues, but many of them do not. I began teaching a course on the 1940 Acts in 1997. (I subsequently expanded the course to include a segment on the regulation of brokers.) At that time, you could count the number of law schools offering 1940 Act courses on one hand. Since then, more law schools have begun to offer such courses, but many law schools still do not.
Why are law schools not offering such an important business law course? One problem may be staffing. Many schools, including my own, have only one securities law professor. That person often also has to teach Business Associations, Mergers and Acquisitions, and other such courses, leaving no time for a second securities course. I have been able to offer my course only by rotating it with Mergers and Acquisitions on a biennial basis.
The lack of 1940 Act courses may also be due to the backgrounds of people teaching securities law. Some (certainly not all) securities law professors come from the litigation side of practice. Securities litigation centers on the 1933 and 1934 Acts. Litigation is a less important part of practice under the 1940 Acts, so many securities litigators aren’t exposed to it much.
A third problem is a lack of teaching materials. There isn’t much available on the 1940 Acts. I was lucky when I began teaching the course to discover a set of materials put together by Larry Barnett at Widener University. Those materials, supplemented with my own handouts and problems, have worked well. Unfortunately, Larry just retired and will no longer be updating his materials, so I’m not sure what I’m going to do now. I suspect more people would teach the course if more books were available, but there’s a chicken-and-egg problem. The major publishers aren’t interested in offering materials for a course that few schools teach.
Whatever the reason, the lack of such courses is a serious deficiency at any school preparing students for a securities law practice.
I'm interested to hear from commenters: are there any other courses law schools aren't teaching that are crucial to business law practice?
Tuesday, January 13, 2015
When I first started teaching at the University of North Dakota School of Law, I had the pleasure of having Patti Alleva as a colleague and mentor. She is one of the workshop presenters of the program listed below. Patti is an oustanding teacher, and a teacher of teachers.
One of the great things I took away from my time with her is to teach intentionally. That is, we all have different styles and goals, and that's okay. In fact, it's a good thing. We don't all need to teach the same way, but we all should think about what we do, learn about how others learn, and then make decisions in the classroom for a reason. Risks are okay (and, with Patti, encouraged) -- some things we try don't work. We learn from that, too, and they can make us better. The key is to try to maximize the learning experience for students.
I think, in the big scheme of things, I am an okay teacher. I work at it; I care, and I genuinely want my students to learn and succeed. And I do things in my classes for a reason. How good I am, is really for others to answer. I know I am not as good as some. I'm not in the same ballpark as Patti, or, for that matter, my wife. She and Patti are two of the best I know. But, without question, I'm a better teacher for having learned some of the craft from Patti, and I know many others who agree.
If this kind of conference is an option and you're interested, I highly recommend you give it a shot.
Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning
Register and pay online
(through UCLA website)
"Engaging the Entire Class: Strategies for Enhancing Participation and Inclusion in Law School Classroom Learning" is a one-day conference being presented by the UCLA School of Law and the Institute for Law Teaching and Learning (ILTL) in Los Angeles, California on February 28, 2015.
The conference will include an opening and closing led by ILTL Co-Directors and Consultants, and five workshop sessions. Each workshop session will be presented by a teacher featured in What the Best Law Teachers Do.
Workshop presenters include:
· Patti Alleva, University of North Dakota
· Steven Friedland, Elon University
· Steven K. Homer, University of New Mexico
· Nancy Levit, University of Missouri-Kansas City
· Hiroshi Motomura, UCLA
By the end of the conference, participants will have concrete ideas for enhancing participation and inclusion in law school classrooms to take back to their students, colleagues, and institutions.
Who Should Attend
This conference is for all law faculty (full-time and adjunct) who want to learn about enhancing participation and inclusion in law school.
All Sessions will take place at the UCLA School of Law on Saturday, February 28, 2015.
· 8:00-8:40 a.m.: Registration and Continental Breakfast
· 8:40-9:00 a.m.: Welcome and Opening
· 9:00-10:00 a.m.: Workshop 1
· 10:00-10:20 a.m.: Break
· 10:20-11:20 a.m.: Workshop 2
· 11:20-11:40 a.m.: Break
· 11:40 a.m.-12:40 p.m.: Workshop 3
· 12:40-1:30 p.m.: Lunch
· 1:30-2:30 p.m.: Workshop 4
· 2:30-2:50 p.m.: Break
· 2:50-3:50 p.m.: Workshop 5
· 3:50-4:10 p.m.: Break
· 4:10-4:30 p.m.: Closing
· 4:30 p.m.: Adjourn
Through February 12, 2015
· $250 - General Attendance
· $100 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
· $0 - UCLA Law full/part-time faculty (registration required)
After February 12, 2015
· Registration is on-site only
· $300 - General Attendance
· $300 - Gonzaga University, University of Arkansas Little Rock, or Washburn University full/part-time faculty
· $0 - UCLA Law full/part-time faculty (registration required)
Registration fee includes:
· all materials, and
· breakfast, lunch, and snacks.
Participants are responsible for their own travel arrangements to the conference.
A block of rooms has been reserved until January 25, 2015 for the nights of February 27 and February 28 at:
· UCLA Guest House
330 Charles E. Young Dr. East
Los Angeles, CA 90095
$177.00: queen bed
$182.00: queen bed with kitchenette
$182.00: queen bed with twin bed
Make reservations by calling the hotel directly at (310) 825-2923 and mentioning that you are participating in the UCLA School of Law's "Institute for Law Teaching and Learning Conference at UCLA".
Please note: UCLA Guest House offers complimentary continental breakfast each morning but is not a full-food service hotel - meaning that they do not provide the service of ordering food via room service, and there is not a lobby restaurant. There are, however, many restaurants in Westwood Village, which is less than a 15 minute walk from the hotel. Also: On-site parking at the Guest House is free, but limited, on a first-come, first-served basis. If the hotel parking lot is full, the Guest House sells parking passes for the closest UCLA parking structure number 3.
Friday, January 9, 2015
A few weeks ago, I described to you a really special extracurricular project undertaken by one of my students, Brandon Whiteley, now an alum, this past year. The project? Proposing and securing legislative passage of Invest Tennessee, a Tennessee state securities law exemption for intrastate offerings that incorporates key features of crowdfunding. The legislation became effective on January 1.
In that first post, I described the project and Brandon's observations on the legislative process. This post highlights his description of the influences on the bill that became law. Here they are, with a few slight edits (and hyperlink inserts) from me.
Friday, January 2, 2015
One of my new year's resolutions for 2015 is to fast from e-mail every Saturday. Now that I have posted this, my co-bloggers and readers can keep me accountable. Currently, I probably check my e-mail 20+ times a day, every day -- a habit formed during law firm life.
I thought about fasting from the internet/electronics entirely on Saturdays, and I am still going to try to avoid the internet/electronics on Saturdays as much as possible, but I wanted to set a realistic goal.
An acquaintance of mine in New York City, Paul Miller, went without the internet for an entire year (with less promising results than he had hoped). While I remember a time before the internet -- and a time when the internet was so slow it was almost useless -- it is hard for me to imagine going without the internet for a week, much less for a year. That said, I think it healthy to loosen the electronic leash a bit every once in a while.
I'd also like to cut back the number of times I check e-mail and the amount of time I spend responding to e-mails in general. If any readers, have suggestions on the appropriate amount of time on e-mail (for a professor), I would be interested. Obviously, it may vary a bit from week to week, but I am thinking about moving to checking e-mail twice a day during the week for 15 minutes each. I think this will allow me to continue being "responsive" to students and colleagues, but will also free up a great deal of time. Most of the longer e-mails I write could probably be much shorter or would be better as conference calls or in-person meetings.
What are your 2015 resolutions, or are you among the roughly 55% who do not set new year's resolutions?
Sadly, according to one study, only about 8% of people keep their new year's resolutions. For those of you who have set new year's resolutions, here is Professor Cass Sunstein with advice for keeping resolutions. Also, StickK.com (co-created by Yale University economics professor Dean Karlan) is a website where you can create commitment contracts, appoint a referee, and set the stakes for achieving or failing to reach your goals.
Thursday, January 1, 2015
Happy New Year.
Starting Saturday morning (or maybe tomorrow night), I'll be live tweeting from the Association of American Law Schools (AALS) conference. Because I teach both civil procedure and business associations, my tweets will largely relate to those sessions as well as sessions for new law professors.
Next Thursday I will summarize the high points of the conference, at least from my perspective.
My twitter handle is @mlnarine and the AALS hashtag is #AALS2015. If you're at the conference and a blog reader, please say hello.
Tuesday, December 30, 2014
This week I received the notice below from Professor Jason Gordon. Professor Gordon is a legal studies and management professor at Georgia Gwinnett College, School of Business. As explained below, he is offering copies of two entrepreneurship books that he thought might be useful to BLPB readers.
I recently published two texts entitled Business Plans for Growth-Based Ventures and Understanding Business Entities for Entrepreneurs and Managers. These books are designed for use by clinical law professors and as a supplement in entrepreneurship courses. The second text concerns entity selection considerations, but includes entity funding and conversion considerations and specific considerations for startup ventures.
The texts also contain supplemental electronic material available for free at TheBusinessProfessor.com.
If any of you would like a free copy of either text in Amazon e-book format, please send me your email address at jgordon10 [at] ggc [dot] edu.
A preview of the Business Plans E-Book is available here.
A preview of the Business Entities E-Book is available here.
Monday, December 29, 2014
Grades are in--a few hours late, but in nevertheless. It must be almost time for New Year's Eve, syllabus and first-assignment posting, the AALS conferenece, the first day of classes, . . . and more job searching for our students!
I was reminded in an email from a student this morning that the hunt for summer and permanent law jobs is revving back up again after the holiday doldrums. The student, a 1L mentee seeking summer employment, was asking a few questions about my cover letter post, to which I eaerlier had referred him. I expect to start getting more of these communications from students about their job searches over the next few weeks.
Our brother bloggers over at the Law Skills Prof Blog have already struck while the iron is hot on this issue. Specifically, Lou Sirico posted a quip on dressing for job interviews the other day. The quoted advice? "The interviewer should remember what you said and not what you were wearing."
Hmm. Yeah. I guess so. Well, maybe not.
Certainly, that's the advice I was given by NYU Law's fabulous placement folks in "the day." Then, that meant wearing: a black, navy or midnight blue, or gray skirt suit; a neutral (white, ivory, gray, black) collared shirt or jewel-neck blouse; skin-tone hose; dark, solid-colored, medium-heeled pumps or really lovely flats; and either Barbara Bush pearls (the double strand) or a silk floppy bow tie (like an Hermes twilly, only not as fashion-forward). Bo-ring.
I am proud (but call me lucky) to have gotten my job wearing (to the initial interview) a deep pink--almost fuchsia--silk-blend skirt suit (midi-length skirt, hip-length jacket), with a white collared blouse, neutral hose, black flats, and a patterned (pink, blue, etc.) floppy silk bow tie. (This is where the folks in the UT Law Career Center lose faith that they are sending students to the right place when they refer them to me for career advice!) I was confident and radiant in that suit (although I am not sure I realized that fully at the time), and I am convinced that made a big difference in the reception that I got from people when I wore it. However, it's true that I was interviewed by a woman (a female senior associate in a multicolored silk dress with straight blond hair down to her derrière) and I was seeking employment at an entrepreneurial, individualistic firm--Skadden.
Monday, December 22, 2014
Effective as of January 1. 2015, Tennessee will allow Tennessee corporations to engage in intrastate offerings of securities to Tennessee residents over the internet without registration. The new law, adopted earlier this year, is the direct result of a law-student-led movement. The key student leader was one of my students, and he kept me informed about the effort as it moved along. (I was called upon for advice and commentary from time to time, but the bill is all their work.)
In my experience, this kind of effort--a student-initiated, non-credit, extracurricular engagement in business law reform--is almost unheard of. I was intrigued by the enterprise and impressed by its success. As a result, I asked the student leader, Brandon Whiteley, now an alumnus, to send me some of his perceptions about drafting and proposing the bill and getting it passed.
This is the first in a series of three posts that feature Brandon's observations on the legislative process, the key influences on the bill, and the importance of communication. This post highlights his commentary on the legislative process (which I have edited minimally with his consent). I think you'll agree that his wisdom and humor both shine through in this first installment (as well as the others). His organizational capabilities also are evident throughout.
My co-blogger Haskell Murray had an interesting post last month on curiosity and obedience. He wrote about the natural curiosity of children: “As a professor, I wish I could bottle my son’s curiosity and feed it to my students.” But what exactly is curiosity and how exactly do we encourage it in law students?
I recently read an excellent book on curiosity: Curious: The Desire to Know and Why Your Future Depends on It, by Ian Leslie. The book has a lot of interesting things to say about education, parenting, life-long learning, creativity, and innovation. I couldn’t possibly do it justice here. But, if you’re interested in learning and education, legal or otherwise, I strongly recommend it.
Leslie makes a distinction between diversive curiosity and epistemic curiosity. Diversive curiosity is shallow—wanting to know a particular piece of information. When I check on IMDb for the name of the actress in the movie I’m watching, that’s diversive curiosity. Epistemic curiosity, what we really want to encourage in our kids and our students, is the quest for knowledge and understanding, the desire to address the mysteries that don’t have readily ascertainable answers.
Google is mostly about diversive curiosity, finding answers. Google is great at that, but not so good at promoting epistemic curiosity. In fact, Leslie believes that Google inhibits our epistemic curiosity, and thus stifles deep learning.
Why remember information, or teach students information, that we can easily look up on Google? The answer, according to Leslie, is that having those “mere facts” in our long-term memories promotes innovation and creativity. Creativity results from those various facts serendipitously bouncing into each other inside our heads. Instead of deadening curiosity, as many people argue, learning those facts actually promotes epistemic curiosity. The more we know, the more easily we can understand how it all fits together and (the essence of innovation) try to fit it together in different ways. Leslie argues that deep thinking is becoming a lost art as more and more people rely on their machines for information.
I'm still working through what all this means for my teaching, but the book is definitely worth reading.
Friday, December 19, 2014
In each of the classes I have taught I have offered extra credit for a reflection paper on how the media portrays the particular subject because most Americans, including law students, form their opinions about legal issues from television and the movies. Sometimes the media does a great job. I’m told by my friends who teach and practice criminal law that The Wire gets it right. Although I have never practiced criminal law, I assume that ABC’s How to Get Away With Murder, in which first-year students skip their other classes to both solve and commit murders, is probably less accurate. I do have some students who now watch CNBC because I show relevant clips in class. After a particularly heated on-air debate, one student called the network “the ESPN for business people.”
I’m looking for new fiction movies or TV shows to suggest to my students next semester. In addition to the standard business movies and documentaries, what makes your list of high-quality business-related shows? Friends, colleagues, and students have suggested the following traditional and nontraditional must-sees:
1) Game of Thrones (one student wrote about it in the partnership context)
2) House of Cards (not purely business, but shows how business and politics intersect)
3) House of Lies (a look at the world of management consulting)
4) Silicon Valley (one episode I saw talked about entity selection)
5) The Newsroom (during the last season writers tackled insider trading, hostile takeovers, and white knights)
6) Sons of Anarchy (I don’t watch this one so I can’t judge)
7) Shark Tank (not always a complete or accurate depiction but entertaining)
I look forward to your suggestions and to some binge-watching over the holidays.
Thursday, December 11, 2014
In many companies, executives and employees alike will give a blank stare if you discuss “human rights.” They understand the terms “supply chain” and “labor” but don’t always make the leap to the potentially loaded term “human rights.” But business and human rights is all encompassing and leads to a number of uncomfortable questions for firms. When an extractive company wants to get to the coal, the minerals, or the oil, what rights do the indigenous peoples have to their land? If there is a human right to “water” or “food,” do Kellogg’s, Coca Cola, and General Mills have a special duty to protect the environment and safeguard the rights of women, children and human rights defenders? Oxfam’s Behind the Brands Campaign says yes, and provides a scorecard. How should companies operating in dangerous lands provide security for their property and personnel? Are they responsible if the host country’s security forces commit massacres while protecting their corporate property? What actions make companies complicit with state abuses and not merely bystanders? What about the digital domain and state surveillance? What rights should companies protect and how do they balance those with government requests for information?
The disconnect between “business” and “human rights” has been slowly eroding over the past few years, and especially since the 2011 release of the UN Guiding Principles on Business and Human Rights. Businesses, law firms, and financial institutions have started to pay attention in part because of the Principles but also because of NGO pressures to act. The Principles operationalize a "protect, respect, and remedy" framework, which indicates that: (i) states have a duty to protect against human rights abuses by third parties, including businesses; (ii) businesses have a responsibility to comply with applicable laws and respect human rights; and (iii) victims of human rights abuses should have access to judicial and non-judicial grievance mechanisms from both the state and businesses.
Many think that the states aren’t acting quickly enough in their obligations to create National Action Plans to address their duty to protect human rights, and that in fact businesses are doing most of the legwork (albeit very slowly themselves). The UK, Netherlands, Spain, Italy and Denmark have already started and the US announced its intentions to create its Plan in September 2014. A number of other states announced that they too will work on National Action Plans at the recent UN Forum on Business and Human Rights that I attended in Geneva in early December. For a great blog post on the event see ICAR director Amol Mehra's Huffington Post piece.
What would a US National Action plan contain? Some believe that it would involve more disclosure regulation similar to the Dodd-Frank Conflict Minerals Rule, the Ending Trafficking in Government Contracting Act, Trafficking Victims Protection Act, the Burma Reporting Requirements on Responsible Investment, and others. Some hope that it will provide additional redress mechanisms after the Supreme Court’s decision in Kiobel significantly limited access to US courts on jurisdictional grounds for foreign human rights litigants suing foreign companies for actions that took place outside of the United States.
But what about the role of business? Here are five observations from my trip to Geneva:
1) It's not all about large Western multinationals: As the Chair of the Forum Mo Ibrahim pointed out, it was fantastic to hear from the CEOs of Nestle and Unilever, but the vast majority of people in China, Sudan and Latin American countries with human rights abuses don’t work for large multinationals. John Ruggie, the architect of the Principles reminded the audience that most of the largest companies in the world right now aren’t even from Western nations. These include Saudi Aromco (world’s largest oil company), Foxconn (largest electronics company), and India’s Tata Group (the UK’s largest manufacturing company).
2) It’s not all about maximization of shareholder value: Unilever CEO Paul Pollman gave an impassioned speech about the need for businesses to do their part to protect human rights. He was followed by the CEO of Nestle. (The opening session with both speeches as well as others from labor and civil society was approximately two hours long and is here). In separate sessions, representatives from Michelin, Chevron, Heinekin, Statoil, Rio Tinto, Barrick, and dozens of other businesses discussed how they are implementing human rights due diligence and practices into their operations and metrics, often working with the NGOs that in the past have been their largest critics such as Amnesty International, Human Rights Watch and Oxfam. The US Council for International Business, USCIB, also played a prominent role speaking on behalf of US and international business interests.
3) Investors and lenders are watching: Calvert; the Office of Investment Policy at OPIC, the US government’s development finance institution; the Peruvian Financial Authority; the Supervision Office of the Banco Central do Brasil; the Vice Chair of the Banking Association of Colombia; the European Investment Bank; and Swedfund, among others discussed how and why financial institutions are scrutinizing human rights practices and monitoring them as contractual terms. This has real world impact as development institutions weigh choices about whether to lend to a company in a country that does not allow women to own land, but that will provide other economic opportunities to those women (the lender made the investment). OPIC, which has an 18 billion dollar portfolio in 100 countries, indicated that they see a large trend in impact investing.
4) Integrated reporting is here to stay: Among other things, Calvert, which manages 14 billion in 40 mutual funds, focused on their commitment to companies with solid track records on environmental, social, and governance factors and discussed the benefits of stand alone or integrated reporting. Lawyers from some of the largest law firms in the world indicated that they are working with their clients to prepare for additional non-financial reporting, in part because of countries like the UK that will mandate more in 2016, and an EU disclosure directive that will affect 6,000 firms.
5) Is an International Arbitration Tribunal on the way?: A number of prominent lawyers, retired judges and academics from around the world are working on a proposal for an international arbitration tribunal for human rights abuses. Spearheaded by lawyers for better business, this would either supplement or possibly replace in some people’s view a binding treaty on business and human rights. Having served as a compliance officer who dealt extensively with global supply chains, I have doubts as to how many suppliers will willingly contract to appear before an international tribunal when their workers or members of indigenous communities are harmed. I also wonder about the incentives for corporations, the governing law, the consent of third parties, and a host of other sticking points. Some raised valid concerns about whether privatizing remedies takes the pressure off of states to do their part. But it’s a start down an inevitable road as companies operate around the world and want some level of certainty as to their rights and obligations.
On another note, I attended several panels in which business executives, law firm partners, and members of NGOs decried the lack of training on business and human rights in law schools. Even though professors struggle to cover the required content, I see this area as akin to the compliance conversations that are happening now in law schools. There is legal work in this field and there will be more. I look forward to integrating some of this information into an upcoming seminar.
In the meantime, I tried to include some observations that might be of interest to this audience. If you want to learn more about the conference generally you can look to the twitter feed on #bizhumanrights or #unforumwatch, which has great links. I also recommend the newly released Top 10 Business and Human Rights Issues Whitepaper.
December 11, 2014 in Business Associations, Conferences, Corporate Finance, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, International Business, Jobs, Law School, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (0)
Monday, December 8, 2014
In the comments to my post last week on teaching fiduciary duty in Business Associations, Steve Diamond asked whether I had blogged about why we changed our four-credit-hour Business Associations course at The University of Tennessee College of Law to a three-credit-hour offering. In response, I suggested I might blog about that this week. So, here we are . . . .
Friday, December 5, 2014
I watch a lot of Shark Tank episodes. Like most “reality shows,” Shark Tank is somewhat artificial. The show does not purport to be an accurate portrayal of how entrepreneurs typically raise capital, but I still think the show can be instructive. From time to time, mostly in my undergraduate classes, I show clips from the show that are available online.
After the break I share some of the lessons I think entrepreneurs (and lawyers advising entrepreneurs) can learn from Shark Tank. After this first list of lessons, I share a second list -- things folks should not take from the show.
Thursday, December 4, 2014
I had planned to blog about the UN Forum on Business and Human Rights this week, but my head is overflowing with information about export credits, development financing, a possible international arbitration tribunal, remarks by the CEOs of Nestle and Unilever, and the polite rebuff to the remarks by the Ambassador of Qatar by a human rights activist in the plenary session. Next week, in between exam grading, I promise to blog about some of the new developments that will affect business lawyers and professors. FYI, I apparently was one of the top live tweeters of the Forum (#bizhumanrights #unforumwatch) and gained many valuable contacts and dozens of new followers.
In the meantime, I recommend reading this great piece from the Legal Skills Prof Blog. As I prepare to teach BA for the third time (which I hear is the charm), I plan to refine the techniques I already use and adopt others where appropriate. The link is below.
Monday, December 1, 2014
I recently read a very interesting article on legal education, The MIT School of Law? A Perspective on Legal Education in the 21st Century, by Daniel Martin Katz, scheduled to appear in the 2014 U. Ill. L. Rev.
Katz, an associate professor at Michigan State, considers the impact of the information revolution and changes in the market for legal services on legal education. He considers how a hypothetical law school might market itself and its students. The key, according to Katz, “is to stop trying to be the ‘50th or 100th best Harvard and Yale’ and instead to concentrate on outflanking these and other institutions by becoming leaders in law’s major emerging employment sectors.” Rather than consider how to incrementally change existing law schools, Katz tries to work backward from what he thinks the future market for lawyers will be like to how a law school should be structured to serve that market. Not surprisingly, Katz concludes that knowledge of technology, math, engineering and science will be important for future lawyers—thus, the MIT School of Law in the article’s title.
I’m a little late getting to this, but it’s a very interesting, provocative article—well worth reading. Katz’s article is part of the Illinois Law Review's tribute to Larry Ribstein. That entire issue is worth a close look when it is available.
Wednesday, November 26, 2014
This is the time of year when we craft exam questions and grading grids in anticipation of exams.
Aside from Teaching Law by Design (a fabulous resource that I recommend for all new teachers as a great continuing resource for even those grizzled from years in the trenches), I have used few formal resources to guide my exam writing and grading process. Fortunately, I work with creative, collaborative and generous colleagues who all shared lots of samples and tips when I first started writing exams. Before committing myself to my Corporations exam this year, I decided to see what is out there to guide exam construction and grading. Finding little that was useful on SSRN or Westlaw, I turned to a broader search, which brought me to a general test instruction guideline produced by Indiana University, aptly titled: How to Write Better Tests. It had the following information regarding essay exams that serve as a useful reminder about why we are so meticulous in constructing our grading rubrics and creating grading schemes that, to the greatest extent possible, reduce our individual biases.
Consider the limitations of the limitations of essay questions:
1. Because of the time required to answer each question, essay items sample less of the content.
2. They require a long time to read and score.
3. They are difficult to score objectively and reliably. Research shows that a number of factors can bias the scoring:
A) Different scores may be assigned by different readers or by the same reader at different times
B) A context effect may operate; an essay preceded by a top quality essay receives lower marks than when preceded by a poor quality essay.
C) The higher the essay is in the stack of papers, the higher the score assigned.
D) Papers that have strong answers to items appearing early in the test and weaker answers later will fare better than papers with the weaker answers appearing first.
To combat these common issues the guidelines recommend:
- anonymous grading (check)
- grading all responses to question 1 before moving on to question 2, and so on (check)
- reorganizing the order of exams between questions (check)
- deciding in advance how to handle ambiguous issues (check, thanks to my grading rubric)
- be on the alert for bluffing (CHECK!)
If anyone has found a particularly useful resource regarding exam construction and grading, please share in the comments. I am sure everyone would benefit.
Happy Thanksgiving BLPB readers!