Friday, August 19, 2016
Belmont University starts classes on Wednesday. Below I share a few tips for new students. Josh posted a good list earlier this week, but my list is a bit different, perhaps because I teach primarily undergraduate and graduate business students. None of these is new or earthshattering, but, like many simple things, they remain difficult to put into action.
- Be Professional. As I often tell my students, you start building your reputation in school. I have declined business opportunities from former classmates because I remembered how they conducted themselves in school. Be on time, be prepared, be thoughtful, and be honest. We should recognize that people change over time and be open to giving second chances, but, unfortunately, not everyone will be quick to change an opinion they form of you while you are in school.
- Get to Know Your Classmates and Your Professors. Building relationships is an important aspect of personal and professional life. It is tempting to just put your head down in school and not spend time trying to form strong bonds. An incredible number of students never meet with their professors or only meet with them right before a project or an exam. Professors and classmates are worth getting to know as an end in and of itself, but can also have tangible benefits like better recommendation letters and client referrals.
- Use Laptops Carefully, If At All. There is a growing body of research that shows taking handwritten notes is better for learning the information than typing. For law students, I understand that it can be helpful to have your notes typed to jumpstart your outlines, but, at the very least, disable your internet connection while in class. We are not as good at multitasking as we think.
- Outline Early and Do Practice Tests. Staying on top of your outlining will give you a bit of time later in the semester to do practice tests. In graduate school, most students can memorize the course materials, but practice applying the material properly is often what propels students into the "excellent" category.
- Work Hard, but Schedule Breaks and Take Care of Yourself. It took me a while to learn this, but you actually perform better when you work hard and take care of yourself. For me, this means at least 7 hours of consistently placed sleep, nutritious meals (including breakfast), exercise at least 4x a week, and one day a week detached from work. Even during law school, I consistently put my books down for one 24-hour period during the week (with an exception for the exam period). Some students need to be reminded to work harder; law school should require the work of a full-time job in my opinion. Other students, however, get caught up in the competition and the rigor, and forget the importance of taking care of themselves.
Hope the fall semester is good to all our readers.
Tuesday, August 16, 2016
Whether we're ready or not (we mostly are), classes start tomorrow for West Virginia University College of Law. Orientation for new students started last week, and I had the chance to teach a group of our new students. I had three sessions with the group where we discussed some cases, how to brief a case, and did some writing exercises. It's been a while since I worked with first-year students, and it was a lot of fun.
In addition to the assigned work, I answered a lot of questions, in and out of the classroom. Questions focused mostly on how to succeed as a law student. Although there's plenty of advice on the internet, and whole books dedicated to subject, and even my own blog posts. Last year, I provided my Ten Promises For New Law Students to Consider. This year, I had enough similarly themed questions, that I thought I'd add some detail to my basic advice for new law students.
1) Do the work.
Some students ask -- if I work law school like a job, is that a good idea? As with everything, it depends. I don't know how you work. If you work regular hours, every day, where you focus on the task before you, then it can work well. If you're someone who sits in front of a computer doing everything but your work until a deadline is looming, it's not so likely to work for you.
So, if you work it like a job where you are the boss, and you have no employees. And the work absolutely has to get done, then yes. There will be days when you can work a normal 8 to 5 with a lunch break and get your work done, and there will be times when 80 hours a week is insufficient. If you work until the job is done, you'll be served well.
1A) Doing the work does not mean looking at the cases.
Reading for class is not about checking the box. There may have been times when "looking" at all 40 pages that were assigned would do the trick. Maybe as an undergrad. Of course, I was a mostly terrible undergrad, so I didn't even do that often enough. But law school is about figuring out what matters. That means you need to read the cases more than once. I have seen twice as the rule of thumb, though I think three times is the right place to start. It's not just about recognizing that something happened. It's knowing what happened and what that means, in the context of the case and beyond. And that requires time and careful reading. And, by the way, class is far more interesting when you know what's being discussed. Seriously.
2) Be a good classmate and be the best possible you.
You can be competitive without being a jerk. Your competition is really with yourself. UCLA basketball coach John Wooden always reminded his players to be the best they could be -- not to try to be better than someone else. If you always use someone else as the bench mark, you may be holding yourself back, even if you do better than them. Try to remember that. There will be people who are better than you, at some point, at everything. Be the best you that you can be. Good things will follow. And if it doesn't go as well as you hoped, if you did the work the best you could, you will still be okay. (See 1 and 1A above.)
3) Most people aren't cheating, but if they are, turn them in.
Every once in a while, I hear some students who are convinced that there is rampant cheating. "Some people worked together on their memo." Maybe, but usually not. "Someone's (uncle/sister/cousin) who is a (prosecutor/M&A lawyer/judge), wrote their memo!" Probably not. Most lawyers understand the ethical problems with that. And who wants to write another law school memo after you passed the bar exam? It would take a pretty odd combination of work ethic and lack of basic morals to make that a common occurrence.
But even worse -- give us some evidence if you do know something. Or some names, and we will investigate. I hate cheating, and I want it stopped. I went to law school with my wife, and we didn't even leave out any of our legal writing materials in our home. The rules matter. And you need to practice following them from day one. That said, I don't think most of my students are or were cheaters, and they have rarely given me any reason to doubt their integrity.
More than once over the years, I have also heard students say, "well, I don't want to hurt anyone's career." First, what? If you know someone is not following the rules, they need to be turned in. Lawyers have such an obligation, though I think it is one that is not often enough fulfilled. I have heard of attorneys who had opposing counsel forge their signature, and the attorney still did not turn them in. If we allow it, it continues.
In addition, I have also heard students say, "I can't prove it, but I KNOW they are cheating." If you can't point to facts that show it it, you probably don't KNOW, anything. Your strongly suspect. And might be wrong. Don't forget, lots of people posture when they are stressed or fearful. Focus on your work, and good things are likely to follow.
4) Everything is harder.
I wonder if poor grades are sometimes the reason some students decided others are cheating. I suspect it is sometimes. The numbers suggest that most of our students are used to getting good grades, so a B can seem like something went wrong. But law school is the next step up. I often use a sports analogy -- law school is like an athlete going from college to the pros (or the olympics). The competition is better because everyone at the next level has a better skill set. If there is a curve (and there usually is, official or unofficial, in the first year), then students are being compared to one another. It's not just how well did you do -- it's how well did you do relative to others. That may seem unfair, but those are (usually) the rules. Be prepared to work hard, and know others will be, too. There is room for everyone to succeed, but not everyone can be at the top.
5) You are not your grades.
Don't let a grade define you. Your paper may be a C+. But you are not. Your A* (which was how the highest grade in the course was noted when I was in law school), doesn't make you an A*, either. Your work can be a reflection of you, but it is not you. Sometimes things don't go well. Sometimes you might not have worked hard enough. Sometimes you're sick. And, yes, sometimes the professor's view of the world is flawed. Other times, a student might have studies three things all semester. And it's the three things tested on the exam. You can only control your work and your effort. You must react and respond to the rest.
So, I know I am biased. I loved law school. It's why I do what I do. Not everyone will feel that way. But give yourself a chance. Prepare. Engage. Ask questions. Be wrong. And learn.
Have a great year! Oh, and by the way, take Business Organizations before your graduate. It's pretty much essential.
Wednesday, August 10, 2016
From an e-mail I received:
The University of Richmond School of Law seeks to fill two entry-level tenure-track positions for the 2017-2018 academic year, including one in corporate/transactional law. Candidates should have outstanding academic credentials and show superb promise for top-notch scholarship and teaching. The University of Richmond, an equal opportunity employer, is committed to developing a diverse workforce and student body and to supporting an inclusive campus community. Applications from candidates who will contribute to these goals are strongly encouraged.
Inquiries and requests for additional information may be directed to Professor Jessica Erickson, Chair of Faculty Appointments, at firstname.lastname@example.org.
Tuesday, August 9, 2016
I am not the first to notice that law professors, and academics generally, have their own jargon and favorite buzzwords. Some websites do a nice job of highlighting (or mocking) many of the odds turns of phrase many of us use. Lawyers in the practicing bar do this, too, of course, and other professionals, especially business people (see, e.g., Dilbert) and public relations professionals.
I try not to be too jargon-y, but I have caught myself more than a few times. I am big on “incentivize,” for example. After attending a great SEALS Conference (likely more on that to come), I came away with a bunch of new ideas, a few new friends, and some hope for future collaboration. I also came away noticing that, sometimes, as a group, “we talk funny.” On that front, two words keep coming to my mind: “unpack” and “normative.”
So, when did we all “need” to start “unpacking” arguments?
This seemed like a relatively recent phenomenon to me, so I checked. A Westlaw search of “adv: unpack! /3 argument” reveals 140 uses in Secondary Sources. The first such reference appears in a 1982 law review article: Michael Moore, Moral Reality, 1982 Wis. L. Rev. 1061 (1982). The phrase doesn’t appear again until 1988, in this article: Jeffrey N. Gordon, Ties That Bond: Dual Class Common Stock and the Problem of Shareholder Choice, 76 Cal. L. Rev. 1 (1988). Of the 140 citations, 113 (or 80%) of those have appeared since January 1, 2000 (69, or nearly 50%, have appeared since 2010). Relatively modest numbers, frankly, compared to how often I think I heard it said, but maybe we're just getting ramped up.
And when did things become “normative?”
It also seemed to me that it’s relatively recent that the things we expect to happen (or people to do) became “normative” in legal academic circles. Before that, I think we called things the standard or the norm, but it was far less common that legal academics discussed “normative” behavior in the way we do now.
A Westlaw search bears this out, too. A search of all secondary sources on Westlaw before January 1, 2000, revealed that the term had been used in 2,668 pieces. Since that date, normative has shown up in 7,270. The term has obviously been around for a long time, and has value in many contexts, but saying “normative” is the new normal.
To be clear, I don’t think the use of all jargon is bad, and I appreciate that as law professors do more interdisciplinary work, we will expand our jargon into other fields. Sometimes specific words help us communicate more precisely in a way that increases usefulness and understanding. I like terms of art and specificity. (See, e.g., any of my rants about LLCs.) I’m just observing what seems like a shift in how we talk. That’s not necessarily a bad thing. Maybe it’s just a thing.
I welcome any comments on these terms, or even better, a list of other words or phrases I missed. I know there's a lot more out there.
Do you value diversity? At California Western School of Law, we pride ourselves on the diversity of our student body. This year, around 50% of our incoming students are from diverse cultural and ethnic backgrounds. We are committed to having a faculty that reflects our student body and our community.
Do you want to influence legal education at an established but innovative law school? California Western recently celebrated its 90th anniversary - but we have never been stale or ordinary. We were on the forefront of innovative, experiential education three decades ago. As a result, our graduates have a reputation for being uniquely practice-ready. California Western continues to rethink the status quo in legal education – balancing a rigorous practical education with cutting edge scholarship and community service.
Who are you? We are seeking candidates with an entrepreneurial spirit who are eager to put their own stamp on a law school with an expanding faculty and many growth opportunities.
What do you want to teach? We can prioritize your teaching preferences regardless of subject matter.
Where do you want to live? California Western is in downtown San Diego, California, literally overlooking the Pacific Ocean. A city of breathtaking beauty, we have perfect weather, miles of beaches, and nearby mountains. We are a family-friendly, diverse city with small city traffic and walkable neighborhoods.
If you are excited about teaching a diverse student body, shaping the next iteration of an innovative and successful law school, and living in “America’s Finest City,” we want to hear from you.
Candidates should email their materials by September 30, 2016 to Professor Ken Klein at email@example.com. Candidates are encouraged to submit a statement to our Appointments Committee addressing how they can contribute to the goal of creating a diverse faculty.
Monday, August 1, 2016
The University of Nebraska College of Law is hiring, and business law is one of their areas of interest. See the ad below:
The UNIVERSITY OF NEBRASKA COLLEGE OF LAW invites applications for entry-level and lateral
candidates for one or more tenure-track or tenured faculty positions. Our needs include courses related
• Business Law (e.g., Business Associations; Corporate Finance, Corporate Governance, Insurance Law,
Bankruptcy, Corporate Restructuring, Nonprofit Organizations, Risk Management / Compliance, or White
• Criminal Law (e.g., Federal Criminal Law or White Collar Crime, Criminal Procedure 2, Post-Conviction
Remedies, or Criminal Sentencing);
• Health Care (e.g., Federal Regulation of Health Care Providers, Health Care Finance, Torts,
Administrative Law, Medical Malpractice, Privacy Law, Law and Medicine, Public Health Law, Bioethics
and the Law, and the Law of Provider and Patient);
• Litigation Skills and Related Courses (e.g., Trial Advocacy, Civil Rights Litigation, Pretrial Litigation or
other litigation skills courses, Conflicts of Laws);
• Family Law;
• Education Law; and
• Election Law.
Minimum Required Qualifications: J.D Degree or Equivalent, Superior Academic Record, Demonstrated
Interest in Relevant Substantive Areas. Title of Asst/Assoc/or Full Professor will be based on
qualifications of applicant. Please fill out the University application, which can be found at
http://employment.unl.edu/postings/50660, and upload a CV, a cover letter, and a list of references.
General information about the Law College is available at http://law.unl.edu/. The University of Nebraska-
Lincoln is committed to a pluralistic campus community through affirmative action, equal opportunity,
work-life balance, and dual careers. See http://www.unl.edu/equity/notice-nondiscrimination Review of
applications will begin on August 25, 2016 and will continue until the position is filled. If you have
questions, please contact Associate Dean Eric Berger, Chair, Faculty Appointments Committee,
University of Nebraska College of Law, Lincoln, NE 68583-0902, or send an email to
Friday, July 29, 2016
As in past years, I will maintain lists of law professor openings in the business areas (excluding commercial law-only posts) and legal studies professor openings outside of law schools. If your school has an opening that you would like posted, feel free to contact me.
The law professor openings list uses the PrawfsBlawg spreadsheet, if an alternate link is not provided. Positions added after today will include the date added.
Law School Professor Positions (Business Law Areas)
- Boston University
- California Western (8/10/16)
- Pace University
- Suffolk University (IP & Entrepreneurship Clinic) (8/18/16)
- University of Alabama (8/18/16)
- University of California, Berkeley (8/10/16)
- University of California, Hastings
- University of Georgia
- University of Nebraska
- University of Nevada, Las Vegas
- University of Richmond
- University of Tennessee
- Washington University, St. Louis (Law & Economics)
- William & Mary (8/18/16)
Legal Studies Professor Positions (Outside of Law Schools, Mostly in Business Schools)
- Bentley University
- Bryant University
- Duquense University (VAP or instructor)
- Georgia Southern University (8/18/16)
- Indiana University, Kelley School of Business
- Ithaca College
- Marist College
- Pepperdine University
- Texas State University (8/10/16)
- University of Pennsylvania, The Wharton School (Business Ethics)
- University of Wisconsin, Whitewater (lecturer)
- Western Michigan University
Wednesday, July 20, 2016
Last week on the blog I featured the smart book Empire of the Fund by sharing excerpts from a conversation with author, Professor William Birdthistle. In discussing the book, he shared with me some insights on writing a book: its process, genesis and use in the classroom. I am fascinated by other's people writing process in the continual effort to improve my own.
writing a book...
[W]riting a book was more of a challenge than I expected, even though I told myself it was simply a collection of law review articles. It turns out that the blinking cursor on an empty screen is more taunting when you're obliged to fill hundreds of pages. Brief stints of productivity need to be repeated again and again and, until it all exists, nothing really exists. I developed a convoluted system of drafting notes, then sitting down with a research assistant to record a chat about those notes, then working that recording into an outline. That process still left me with plenty of writing to do, but I found it much easier to expand, polish, and revise those outlines than to fight the demon blank page.
Talking through your ideas forces you to synthesize the materials. It also retains the humanity behind the arguments. This method makes a lot of sense when you read Professor Birdthistle's book because it feels like he is talking to you— just in a way that is smarter, better organized and more pithy than most of us can muster in the average conversation. His book doesn't read like the belabored, bloated, and laborious sections that all too often find their way in law review articles (my own included).
genesis for the book...
The contents, to a large extent, have actually come from the classroom -- as these materials serve as the syllabus for a seminar I've taught for a few years. The seminar, called Investment Funds, is almost always popular: in a go-go market, all the students want to hear about private equity and hedge funds; then in downturns, I get a sober audience of students who want to know more about their 401(k)s.
application to broader classes...
I often work this material in to my BusOrg and SecReg classes too: so, I emphasize the role of funds on topics like corporate purpose (does charitable giving look different if the corporate funds might otherwise go to 401(k) holders), proxy contests (in which mutual funds are major institutional investors but often conspicuously absent from these fights), shorting (where the securities are often borrowed from mutual funds and ETFs), and behavioral versus neoclassical theory (quoting heavily from a wonderful disagreement between Judges Easterbrook and Posner in Jones v. Harris before it went to the Supreme Court).
Since almost all students will soon be figuring out their own 401(k) and mutual fund investments, I've found that it's easy to make business issues far more salient to their lives. Even to the saints who'll soon have a 403(b).
the role of behavioral work...
Finally, I highlight Professor Birdthistle's observations about changes to the corporate law landscape made space for a book like his to contribute, in a serious way, to the academic and popular debate about the efficacy of the mutual fund market.
I've been struck by the change in our intellectual and academic disposition towards investing problems. I've been in the academy for a decade now and, when I began, the rational investor model was so thoroughgoing that it was difficult to discuss problems of individual investing. Many conversations -- and job talks -- required a first-principles exegesis about how this market might possibly be anything other than highly efficient. But a tide of behavioral work in recent years has helped explain why investors might struggle, and a good deal of empirical work has concretely shown how they struggle. So conversations today focus more upon solutions rather than on whether there is even a problem.
To this last point, I wonder what ideas and principles, which seem untouchable today, will give way to the next generation's breakthrough. I think is a particularly heartening message for young scholars--not all of the work has been done! Keep at it! And it is an important message for folks who aren't writing in the mainstream. For folks who are passionate about their work, but feeling like their ideas aren't garnering the right cache with the right audiences. This is where you persevere so long as the work is thorough and well researched. Maybe you and your work are contributing to an important intellectual advancement. You could be changing the tides in ways that in presently imperceptible, but significant nonetheless. So as the August submission deadline looms and the summer hours threaten to languish, press on!
Because this post is a compilation of quotes, I now turn to Garrison Keeler to close:
Be well, do good work, and keep in touch.
*Query: Are the best motivational speeches are the ones you write for yourself?
Thursday, June 16, 2016
8th Annual Berle Symposium - Benefit Corporations and the Firm Commitment Universe - June 27-28, 2016 - Seattle, WA
Three Business Law Prof Blog editors (myself included) are presenting at the upcoming Berle Symposium on June 27-28 in Seattle.
Colin Mayer (Oxford) is the keynote speaker, and I look forward to hearing him present again. I blogged on his book Firm Commitment after I heard him speak at Vanderbilt a few of years ago. The presenters also include former Chancellor Bill Chandler of the Delaware Court of Chancery. Given that Chancellor Chandler's eBay v. Newmark decision is heavily cited in the benefit corporation debates, it will be quite valuable to have him among the contributors. The author of the Model Benefit Corporation Legislation, Bill Clark, will also be presenting; I have been at a number of conferences with Bill Clark and always appreciate his thoughts from the front lines. Finally, the list is packed with professors I know and admire, or have read their work and am looking forward to meeting.
More information about the conference is available here.
June 16, 2016 in Anne Tucker, Business Associations, Conferences, Corporate Governance, Corporations, CSR, Delaware, Financial Markets, Haskell Murray, Joan Heminway, Law School, Social Enterprise | Permalink | Comments (0)
Tuesday, June 7, 2016
Michigan's softball team lost in the College World Series, and there was understandable disappointment. I thought coach Carol Hutchins message, though, was spot on:
“One thing I learned after the national championship, it definitely doesn’t define you,” she said. “If winning defines you, you’re not focused on the right things. I’m defined by all the women that I’ve been able to help grow up and who have impacted my life equally. I define myself by that.
“We’ve won a lot of games here, we’ve lost a lot of games here. It’s a sport. We do the best we can every day.”
Yes. You can't control who you play. You control how you prepare, and how you try, and how you care. Sometimes, you can control how you play, but not always who you play against or the tools you have at your disposal.
This is true as a lawyer, too. You may have bad facts. Or a bad client. Or a whole host of other hurdles. On a bad day (hopefully) you may go up against someone who is just better than you. You can control how you prepare, how hard you work, and how much you care. The rest, is out of your hands.
You can't let winning define your worth. If you do, there's a good chance you will underestimate your value when you lose. And overestimate it when you win. A little perspective goes a long way, and odds are, with perspective, as long as you sustain your effort, you have a better chance at winning more often.
Friday, May 27, 2016
One of our readers (thanks, Tom N.) brought this to my attention earlier today. I have passed it on to some folks internally here at UT Law. Scammers who prey on students to extract money from them to pay a "Federal Student Tax" deserve their own special place on the Wall of Shame. 'nough said.
A few months ago, Inside Higher Ed ran a story that noted "that grades continue to rise and that A is the most common grade earned at all kinds of colleges." (emphasis added). This finding surprised me. I knew grade inflation was becoming more and more common, but I did not expect A to be the most common grade earned, especially in the undergraduate setting.
The article reported that A's accounted for "more than 42 percent of grades" and "A's are now three times more common than they were in 1960." (emphasis added).
This grade inflation trend is a mistake, in my opinion. And it is a trend that is impacting graduate schools as well. At the law school I attended, they moved from a 100-point scale and a 78-point mean when I attended, to letter grades and a much higher mean GPA. I understand why my alma mater made the move; they were very different than other law schools, even at the time, and a student with an 85% average had a tendency to be discounted by employers, even if that person was in the top 10% of her class. Business graduate schools may well have led the grade inflation charge, probably driven, at least in part, by employers who would only reimburse for a B or better in a class. Again, I think grade inflation is a mistake.
Is grade inflation simply an extension of the participation trophy phenomenon? "Entitled" might be the most common adjective I hear used to describe students today. "65% of Americans Say Millennials Are “Entitled,” 58% of Millennials Agree." And if these students grew up being rewarded for just showing up, why wouldn't they be entitled? For the most part, I agree with Pittsburg Steeler, James Harrison, who famously returned his children's participation trophies. To be clear, I think there is a place for team (and individual) achievement trophies and for most improved trophies, but trophies for just showing up seems to encourage mediocrity.
I also understand this mother's point of view, who argued in favor of participation trophies, given the situation of her "mildly intellectually disabled" son. She is concerned for "kids who don't have the chance to ever be the star athlete [or student] no matter how hard they work for it" and hopes for recognition "that not everyone is born with the same abilities." When teaching, my heart does go out to the C-student who appears to be doing his best, while a slacker gifted student may be able to get a B with minimal effort. We should encourage the determined C-student, but also teach him that achievement takes time and effort and is more difficult for some. I believe that former UCLA basketball coach John Wooden defined success well when he wrote: "Success is peace of mind which is a direct result of self-satisfaction in knowing you made the effort to become the best you are capable of becoming." I want my children and my students to know that I care about them regardless of their relative achievement. I want them to know that doing their very best is all that can be rightly expected. But I do not want to shelter them from the reality of failure. And I want them to realize that life is not always fair. And I want to help them to find a career well-suited for them, which may be aided by comparison to others over time.
In light of all of this, how should we respond in our grading?
I think there has to be a discussion at the college and university level. Individual teachers are in a tough position. At most schools, a professor who believes that Cs are average, and As are only for true excellence, would be a significant outlier and could wreck individual student GPAs. Personally, I think colleges and universities need to establish a presumptive mean grade (and maybe some distribution requirements as well). The grade mean would have to have some flexibility, especially for smaller classes, where the high achieving students may be concentrated or absent from particular classes. I know there are some who find a required grade mean limiting, and an established mean is not without faults, but I think it is a more fair system and limits the race to grade inflation that is sure to occur if more flexibility is granted.
While effort should be recognized and encouraged, grades and trophies should represent relative achievement. Competition is a reality of business. You don't get clients just by trying hard; you get clients by being the best. Students and athletes need to learn to compete, push through failure, and at some point realize that it may be best to move on to a different area.
Thursday, May 26, 2016
It is that time of year again when law profs are up to their ears in grading exams. (Unless one teaches on the continent, where exams are oral.) Given my location in the UK, I thought I would provide a few insights on what we do here. These are my own personal reflections and I may not be able to generalise about what gets done across the board, though in the UK we probably have more uniformity of policies among law schools and universities generally than in the US. What I am about to say is nowhere near complete in coverage. I want to focus here only on some differences which caught my particular attention as an American teaching in the UK.
Preliminarily, we don’t use the word “grading.” The term is “marking.” This is terminological. They mean the same thing. I’ll stick to the American terminology here.
We allocate grading and just about every other task to be done in a British law school through something called a “workload allocation.” A workload allocation is a bit of distributive justice. It is meant to allocate work in the school fairly among all faculty (we say staff but I’ll stick to the US word). So, if you are called upon to chair a busy committee, you get credit for that in the workload. The workload will include time for you to do scholarship if scholarship is part of your job.
Here comes the interesting part for those of you saddled with large classes and large amounts of exam grading: exam grading is also subject to the workload allocation. You may be asked to grade in a course (a ‘module’) you did not teach.
Tuesday, May 24, 2016
Some time ago, I wrote the post Better Teaching Idea: Try to Notice When the Wind Is at Your Back. That post emerged from some observations while running, and today's post has the same origin.
This month I have been trying to up my miles again for no particular reason. I don't run for races. I run to run. And to feel like I am at least doing something to stay in some semblance of good shape (it's not really working). I now run 4 miles most days. Maybe a little more or less, but that's the norm this month. The past two days, I ran from my house, which is at the top of a hill. It is more of a mountain when I am running up it. (I promise, I am getting somewhere with this.)
I often go down to the rail trail along the river, which is a mostly flat, pretty place to run. The last two days, I have been running from my house. This means that if I want to get any distance in, I need to go down the mountain. And, of course, it means I need to get back to the top. Now, I could stay at the top. It's relatively flat on our street, and I can run a quarter of a mile down and back and stay at the top of the mountain. That's a lot of down and backs to get in four miles. No thanks. It's easier, but not much fun. (Note: you can follow along my running escapades on Twitter @jfershee and Nike+.)
My usual route from my house takes my down the mountain, then back up the mountain, where I turn around and retrace my steps. That means I am running up the steepest part of the run at mile 3.5. It's not always my favorite part of the run, even if it is my most triumphant. As I was slogging my way back up the mountain, my mind wandered and I caught myself thinking again, "It would have been a lot easier to just stay at the top." And it is. It's true in running, and it's true in most everything else we do.
It doesn't matter how you get to the top. Once you're there, it's easier to stay there than it was to get there. It may take a lot of work to get to the top. For most people, it does. But someone can just take you to the top, too. Once you're there, it's easier to stay there. And once you leave, it's hard to get back up.
Knowing all of this is important. And it is important to remember that not everyone has the same amount to climb to get to the top of whatever it is they are climbing. I did not come from money, but I had everything I needed. I am a straight, white male. The data show that starts you ahead of the game. I went to good public schools. I went to college. And law school. This required a lot of work to move ahead, but the opportunity was there for me in a way it isn't for many.
It's easy to start thinking that everyone is starting from the same point. And it's a lot easier to notice the people who are ahead of you on the way up. It's not that often that we look back, which can skew our perspective in unproductive ways.
As teachers, it's important to recognize that we can be part of helping our students move up their mountain. And they may not be starting from the same place we were. They may have further to go. Some may have less. It's our job to help them get where they want go. As a corollary, it's also important to remember that just because they might have farther to go, it's not our job to limit the mountains they can climb. To the contrary, it's our job to help them see that the sky truly is the limit.
That's my take away for the day: as hard as it is to keep climbing to the top, don't ever think you're doing it alone. Appreciate who helped you. Keep slogging. And when you get to the top, don't forget to see if you can help someone else up.
Friday, May 6, 2016
The Institute for Law Teaching and Learning 2016 summer conference is focusing on "the many ways that law schools are preparing students to enter the real world of law practice." The conference is being held at Washburn University School of Law. The agenda and registration information are available here.
It is commencement season – our commencement at Belmont University is tomorrow. Commencement season means commencement speeches. Commencement speeches often comes with an extra helping of cliché advice. If I had to guess, no piece of cliché advice is more common in commencement speeches than “follow your passion in your career.”
For example, in Steve Job’s famous Stanford commencement speech he said:
You’ve got to find what you love. And that is as true for your work as it is for your lovers. Your work is going to fill a large part of your life, and the only way to be truly satisfied is to do what you believe is great work. And the only way to do great work is to love what you do.
Jim Carey, in an otherwise pretty original and somewhat odd commencement speech, included some of the cliché “follow your passion” advice when he said:
My father could have been a great comedian, but he didn’t believe that was possible for him, and so he made a conservative choice. Instead, he got a safe job as an accountant, and when I was 12 years old, he was let go from that safe job and our family had to do whatever we could to survive. I learned many great lessons from my father, not the least of which was that you can fail at what you don’t want, so you might as well take a chance on doing what you love.
Like almost any cliché, the “follow your passion” instruction contains some wisdom. I do think there are students who take conventional jobs out of fear, and fear shouldn’t drive a decision as important as career choice. That said, I also think this cliché advice can do a good bit of harm. I see students overly focused on trying to find work that fits with their current interests --- music, sports, travel, etc. --- or work that they think will “change the world" and make them feel good in the process. As a result, students often ignore work that may seem ordinary, but is just as important, if not as glamorous.
Accounting, mentioned in Jim Carey’s speech, is actually one of those areas that students often pass over as “ordinary work” or turn to reluctantly, out of fear. Few people I know have a natural passion for accounting. But I have seen a passion for accounting develop over time. As the philosopher William James said:
Action seems to follow feeling, but really action and feeling go together; and by regulating the action, which is under the more direct control of the will, we can indirectly regulate the feeling, which is not.
Most work is “ordinary” work. Even the splashy work celebrated in commencement speeches (and indirectly celebrated by the choice of commencement speakers) has ordinary elements, or was, at the very least, preceded by less unique work. I worry that students, attempting to follow the advice of Jobs, Carey, and others, bounce from job to job trying to find work that makes them feel good immediately and all the time. While I don’t necessary think “do what you love” is bad advice, I think it needs to be tempered with “find work the world needs and that fits your talents,” “do good work wherever you are,” and “know that most work is needed and important, even if it does not grab headlines.” I wish we took more time at our universities to celebrate the day-in, day-out grind of the faithful, ordinary worker. And I am trying to impart to my students that their future work matters, even if it seems common and doesn’t receive much recognition.
Thursday, May 5, 2016
Today I hit “submit” on an article I was asked to review for an international law journal. Because the process required blind peer review, I won’t be any more specific other than to say that the article related to a topic that I have written and spoken about extensively over the past few years. Unfortunately, the author did not cite any of the main (or even ancillary) articles on the topic and instead focused on a number of disparate theories that barely related to the title or topic of the piece. In short, the article had a few good pages and might make a few decent articles, but only after major revisions. I knew what the article was missing because I have read almost every other piece written on the topic.
As a junior academic, I admit that the most frustrating part of the law review process is the lack of peer review, at least in the United States. My colleagues in the EU review articles of 10-12,000 words on average and generally have 1-2 other reviewers deciding on publication of a scholar’s piece. The review period tends to be 6-8 weeks (or so I have been told) and generally journals require exclusive submission. In worst case scenarios, authors can wait several months for an acceptance or rejection. Although I am not a fan of the exclusive submission process, I do prefer the peer review model. It may be subjective, but it’s no more subjective than having articles accepted by 2Ls and 3Ls, who may have no expertise or familiarity with the topic they are reviewing.
A 2014 essay by Josephine Potuto raises another issue with the U.S. law review system—how the articles are edited. The abstract states simply:
Law professors publish in law reviews, not peer-reviewed journals. They are edited by law students. The editing process can be both irritating and exasperating. From experiences lived and those shared by colleagues across the country, I provide concrete examples of where law student editors go wrong, and also explain why.
Finally, in an effort to improve the process, I recommend that faculty advisors and editors read some of my co-bloggers’ insights on the topic.
Happy grading to all and I wish you a productive summer. I will be writing less frequently in May due to a honeymoon and then a research trip to Cuba, which of course, I will blog about. I'm also writing a law review article on Cuba, so hopefully editors won't hold this column against me!
Monday, April 25, 2016
Congratulatons to the Newly Appointed Dean of the J. Reuben Clark Law School at Brigham Young University!
Although other outlets in the blogosphere (including the blog he founded, The Conglomerate) beat us to the punch by a few weeks (see, e.g., here and here), I want to take time out today to congratulate D. Gordon Smith, currently Glen L Farr Professor of Law at BYU Law, on his appointment as Dean of BYU Law commencing May 1. (That's this coming Sunday!)
I have had the privilege of working with Gordon a number of times over the years (perhaps most notably in the formation and leadership of the AALS Section on Transactional Law and Skills and with The Conglomerate), and he is a consummate professional. He represents his institution impeccably as a scholar and servant of the academy and the profession. He has great judgment and is a kind, considerate soul. I know that he will be a great leader for BYU Law.
My only regret is that Gordon will likely have to step back from the many leading roles he has had in pushing business transactional law scholarship forward. His service as a symposium sponsor, conference panel organizer, moderator, discussant, and presenter are so appreciated by me. [sigh]
Nevertheless, I admit it's great to see another strong business law teacher, scholar, and servant in a law deanship. I am delighted for him. And I wish him all the best.
Friday, April 22, 2016
Last week I attended the Midwest Academy of Legal Studies (MALSB) Conference in Chicago, IL. MALSB is one of the 12 regional associations of legal studies professors in business schools that has an annual conference. The Academy of Legal Studies of Business (ALSB) is the national association and the annual national conference is similar to AALS.
Given that I started my academic career at a law school, and still attend some law school professor conferences, I notice differences between law school and business school legal studies professor conferences. While there are plenty of similarities between the conferences, I note some of the differences below.
Pedagogy Presentations. While law school professor conferences do usually address pedagogy in a few panels, the business school legal studies conferences I have attended seem to have a much stronger emphasis. For example, I think the regional and national ALSB conferences tend to have 30%+ of the presentations dedicated to pedagogy. Many of the business school legal studies conferences have master teacher competitions as well, where finalists present their teaching ideas or cases to the audience and a winner is chosen by vote. I think some of this focus on pedagogy is because a fair number of business school legal studies professors are full-time, non-tenure track instructors without research responsibilities. In any case, I generally find the pedagogy presentations quite useful and think law school professor conferences could increase their focus on the area.
Relative Lack of Subject Area Silos. Maybe the biggest difference I have noticed between law school professor conferences and business school legal studies conferences is the relative lack of subject area silos at the legal studies conferences. At most law school professor conferences I attend, I can and do spend the entire time listening to only business law (narrowly defined) presentations. I leave small and big law school conferences only having heard about business associations, corporate governance, M&A, and securities law. At MALSB I heard those presentations, but also heard talks on employment, constitutional, contract, tax, and white collar criminal law. The conference organizers try to keep the panels in generally the same subject area, but the panels bleed into other areas and there is almost never enough pure business presentations to keep you fully occupied at a legal studies conference. The relative lack of subject area silos is good and bad. It is good because the exposure to other areas can lead to new insights about your own areas, but I still attend some law school professor conferences for more focus and depth.
Associated Journals. Most of the regional and national legal studies associations run blind, peer-reviewed law journals. In my opinion, these journals are excellent for our field and offer a nice alternative to law reviews. I've stuck with the national journals to date because a number of the regional journals do not have WestLaw or Lexis contracts yet. As I have said before, I think there is room for even more traditional peer-reviewed law journals, perhaps run by law schools or by law school associations.
Enjoyed my time at MALSB. The people and the presentations were definitely worth the trip.
Monday, April 18, 2016
Imagine This: First-Semester Second-Year Students in Your Business Associations Class Who Already Have a Sense of Transactional Practice . . .
This is not a pipe dream! I honestly believe that in the fall of 2017, this will be a reality for me. (I typically teach Business Associations in the fall semester to a large number of students who understand "cases," not "deals.")
The reason for my good spirits and honest belief in the positive change in my students? Our new 1L curriculum, which is rolling out this fall. No doubt, we will find some changes that need to be made as we implement our relatively bold plan. But I am truly excited that the new first-year curriculum exposes every student to a transactional experience in the first year of law school.
There are many reasons for implementing this kind of change, of course. Among other things, this new approach to the first year at UT Law responds to suggestions that we got from our students and represents an effort to better connect the 1L year to our upper division curriculum (on which we have spent a lot of time over the years). The new 1L transactional offering is part of a larger plan constructed by a College of Law committee, chaired by my colleague (and e-discovery queen) Paula Schaefer, that spent several years looking at our overall curriculum and that of many other schools before fashioning a number of alternative options for the faculty to review.
The implementation involves a lot of work. Many colleagues are chipping in to construct new courses and re-fashion existing courses to meet the new curricular requirements. It takes a village. I am grateful for all of the work being put in. I work with a great bunch of folks.
An article in the National Jurist last week describes the new 1L curriculum in general. Our academic policies, however, add some detail. I quote from them below, with some reformatting for easier reading in this space.
For students entering in or after Fall 2016, the first-year curriculum is as follows:
Civil Procedure I* (3)
Contracts I (3)
Criminal Law (3)
Lawyering & Professionalism (1) Legal Process I (3)
Torts I* (3)
Civil Procedure II (3)
Contracts II (3)
Legal Process II (3)
Torts II (2)
Transactional Lawyering Lab (1)
*First-year students enroll in an experiential section of either Civil Procedure I or Torts I. The experiential sections include three graded, simulation-based assignments. Each simulation places students in the role of lawyer, raises professionalism issues, requires students to perform a lawyering skill, and results in a written and/or oral work product. In addition to a final examination, the course also includes a midterm exam that includes at least one essay question.
We are pretty excited to get this new curricular show on the road. I look forward to sharing more with you as we see how students react in the short term and long term. But my UT Law colleagues and I are very hopeful that this new approach to the first year will lay a strong foundation for upper division academic work and for practice.