Wednesday, May 4, 2016
I am looking forward to attending and presenting at Emory University School of Law’s upcoming conference (June 10-11) focused on the art and science of teaching transactional law and skills. I received word yesterday from Sue Payne, the Executive Director of Emory Law's Center for Transactional Law and Practice, that the keynote speakers for the conference are "the dynamic duo of Martin J. Katz and Phoenix Cai will deliver a keynote address entitled – 'Encouraging this Particular Form of (Very Fun) Madness – Roles for Deans and Faculty Members.'" The notice se sent to me on the keynote speakers offers the following information about Professors Katz and Cai and the conference as a whole:
Marty Katz is Dean and Professor of Law at the University of Denver, Sturm College of Law. Under his leadership, Denver Law developed and implemented a major strategic plan that included initiatives in experiential learning and specialization. He is a founding board member of Educating Tomorrow’s Lawyers, a national consortium of law schools that serve as leaders in the experiential education movement. Dean Katz’s recent publications include “Facilitating Better Law Teaching – Now” (Emory Law Journal) and “Understanding the Costs of Experiential Legal Education” (Journal of Experiential Learning).
Phoenix Cai is the founding director of the Roche International Business LLM Program and Associate Professor of Law at the University of Denver, Sturm College of Law. The Roche LLM in International Business Transactions is an intensive and experiential graduate program designed to train both U.S. and foreign lawyers in private transactional law. Prior to joining Denver Law, Professor Cai was a corporate lawyer specializing in both domestic and international mergers and acquisitions, banking, finance, and securities law.
Don’t miss this opportunity to hear Dean Katz and Professor Cai share their thoughts about how deans and faculty members can promote excellence in transactional law and skills education.
For more information about the Conference, including a list of the many other esteemed presenters and the topics they will cover, go to our conference website. If you would like to register for the Conference, please go here.
I hope to see many of you there. My presentation focuses on teaching the drafting of corporate bylaws. I will say more on it in this space later.
Thursday, April 28, 2016
Hello, everyone - I'm passing this along in case any of our readers have an interest, or know anyone who might have an interest. And if anyone needs convincing as to why they should spend a semester or a year in New Orleans, email me privately and allow me to extol the city's virtues.
Tulane Law School is currently accepting applications for a visiting tax professor for either the Fall of 2016 or for the entire 2016-2017 Academic Year. Visitors would be expected to teach basic Income Tax and other tax related courses. Applicants at any career stage are encouraged. To apply, please submit a CV along with a statement of interest and any supporting documentation. Applications and questions may be directed to Vice Dean Ronald J. Scalise Jr. at firstname.lastname@example.org. Tulane University is an equal opportunity/affirmative action employer committed to excellence through diversity. All eligible candidates are invited to apply.
Monday, April 18, 2016
Call for Panels and Papers
Society of American Law Teachers (SALT) Teaching Conference
in partnership with the
LatCrit-SALT Junior Faculty Development Workshop
Friday and Saturday, September 30 and October 1, 2016
The John Marshall Law School, Chicago, Illinois
From the Classroom to the Community: Teaching and Advancing Social Justice
In 2015, law school applications hit a fifteen-year low. The drop reflects a radically changed employment market and a prevailing view that law school is no longer a sound investment. To attract qualified applicants and respond to a changing marketplace, many law schools have embraced experiential learning mandates and other “practice-ready” curricular shifts. The plunge in applications has also prompted law schools to lower admissions standards. In turn, the admission of students with below-average LSAT scores and modest college grade point averages has created new concerns about bar passage, job placement, and prospects for longterm professional success.
In this environment, the legal academy is faced with unprecedented challenges. On one hand, pressure exists to ensure that students are adequately prepared to navigate a courtroom, draft legal documents, and exhibit other “practice-ready” skills upon graduation. At the same time, law professors are urged to cover a wide spectrum of theory, rules, and doctrine to increase prospects for bar passage. In the struggle to achieve both goals, the critical need to integrate social justice teaching into the curriculum is often overlooked, rejected as extraneous, or abandoned in light of time constraints.
To the contrary, social justice teaching plays an essential role in improving legal analysis, enhancing practical skills, and cultivating professional development. Moreover, social justice teaching can help instill passion, commitment, and focus into students burdened with debt and facing an uncertain job market. Most important, as the legal marketplace contracts, access to counsel for lower- and middle-income people continues to grow -- creating a pressing need for effective and committed pro bono lawyers.
In response to new educational and professional challenges, law schools and the legal profession must join in a concerted effort to integrate social justice teaching into the classroom and expand social justice throughout the community. This conference will provide opportunities to engage in broad, substantive, and supportive discussions about the role of legal education and the legal profession in teaching students to become effective social justice advocates and the ways faculty can set an example through their own activism.
Suggested topics include, but are not limited to:
1. Innovative methods to incorporate social justice concepts into the law school curriculum.
2. Strategies to encourage students to become more engaged in academic and community activism.
3. Collaborative efforts between law schools and the legal profession to respond to the need for greater
access to legal services.
4. Techniques to help law students and new lawyers develop resilience, stamina, and “grit” to face the
enduring challenges of social justice advocacy.
5. Responses to the ever-increasing cost of legal education and its impact on social justice and access
We welcome other related topics and encourage a variety of session formats. You may submit a proposal as an individual speaker, as a panel, or group. Whatever your topic and format, please use the required format as provided below for your proposal.
Please send your proposals to Hugh Mundy (email@example.com) by June 15, 2016.
Other members of the SALT Teaching Conference Committee include Margaret Barry (firstname.lastname@example.org), Emily Benfer (email@example.com), Davida Finger (firstname.lastname@example.org), Allyson Gold (email@example.com), and Aníbal Rosario Lebrón (firstname.lastname@example.org). Please share information about
the Teaching Conference with your colleagues, particularly new and junior faculty, who are not yet members of SALT. Visit www.saltlaw.org for additional details.
Required Format for Proposed Presentations
Please submit all proposals by using the bolded headings set forth below.
1. Title of proposed presentation
2. Presenter name and contact information
Submit contact information for each individual who will participate in the presentation; however, you must identify one person to serve as the primary contact person. The contact person is responsible for receiving and transmitting information about the SALT conference to the other members of the panel.
Presenter’s school (as listed in the AALS Directory) and mailing address
Office phone number
Mobile phone number
Other panel members (if applicable):
Presenter’s school (as listed in the AALS Directory)
3. Summary of the proposed presentation.
The description or narrative portion of the proposal should accurately and succinctly describe the content, format, and anticipated duration of the presentation. The ideal length of the summary is approximately one page of double-spaced text.
4. Related papers or documents (if applicable).
We do not expect all submissions to include related scholarship or documents- especially at this early point in the process; however, if you have any related documents that help to support or illustrate your proposed presentation, feel free to attach them to your submission.
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.
Thursday, April 14, 2016
Today in my Business and Human Rights class I thought about Ann's recent post where she noted that socially responsible investor Calpers was rethinking its decision to divest from tobacco stocks. My class has recently been discussing the human rights impacts of mega sporting events and whether companies such as Rio Tinto (the medal makers), Omega (the time keepers), Coca Cola (sponsor), McDonalds (sponsor), FIFA (a nonprofit that runs worldwide soccer) and the International Olympic Committee (another corporation) are in any way complicit with state actions including the displacement of indigenous peoples in Brazil, the use of slavery in Qatar, human trafficking, and environmental degradation. I asked my students the tough question of whether they would stop eating McDonalds food or wearing Nike shoes because they were sponsors of these events. I required them to consider a number of factors to decide whether corporate sponsors should continue their relationships with FIFA and the IOC. I also asked whether the US should refuse to send athletes to compete in countries with significant human rights violations.
Because we are in Miami, we also discussed the topic du jour, Carnival Cruise line's controversial decision to follow Cuban law, which prohibits certain Cuban-born citizens from traveling back to Cuba on sea vessels, while permitting them to return to the island by air. Here in Miami, this is big news with the Mayor calling it a human rights violation by Carnival, a County contractor. A class action lawsuit has been filed seeking injunctive relief. This afternoon, Secretary of State John Kerry weighed in saying Carnival should not discriminate and calling upon Cuba to change its rules.
So back to Ann's post. In an informal poll in which I told all students to assume they would cruise, only one of my Business and Human Rights students said they would definitely boycott Carnival because of its compliance with Cuban law. Many, who are foreign born, saw it as an issue of sovereignty of a foreign government. About 25% of my Civil Procedure students would boycott (note that more of them are of Cuban descent, but many of the non-Cuban students would also boycott). These numbers didn't surprise me because as I have written before, I think that consumers focus on convenience, price, and quality- or in this case, whether they really like the cruise itinerary rather than the ethics of the product or service.
Tomorrow morning (Friday), I will be speaking on a panel with Jennifer Diaz of Diaz Trade Law, two members of the US government, and Cortney Morgan of Husch Blackwell discussing Cuba at the ABA International Law Section Spring Meeting in New York. If you're at the meeting and you read this before 9 am, pass by our session because I will be polling our audience members too. And stay tuned to the Cuba issue. I'm not sure that the Carnival case will disprove my thesis about the ineffectiveness of consumer pressure because if the Secretary of State has weighed in and the Communist Party of Cuba is already meeting next week, it's possible that change could happen that gets Carnival off the hook and the consumer clamor may have just been background noise. In the meantime, Carnival declared a 17% dividend hike earlier today and its stock was only down 11 cents in the midst of this public relations imbroglio. Notably, after hours, the stock was trading up.
April 14, 2016 in Ann Lipton, Conferences, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Human Rights, International Law, Law School, Marcia Narine, Teaching | Permalink | Comments (0)
Friday, March 18, 2016
Law school can and should be an enriching intellectual experience. For many, however, the three years of law school can also be extremely unhealthy.
What responsibility, if any, do we have as legal academics to encourage healthy behavior by our students? How do we do so?
Many law students have horrendous sleep, exercise, and eating habits. Many of these habits carry over into practice, and probably play at least some role in the numerous, documented health and addiction issues facing law students and lawyers. For undergraduate students, many schools mandate physical education and/or nutrition courses. Should these courses be offered to or mandatory for law students?
Are there things that we are doing as legal educators that encourage unhealthy habits? For example, is testing only once a semester part of the problem or is it simply preparing them for stressful, important events like the bar exam or a big trial?
Just opening this topic for discussion; I don't think I have good answers yet. Feel free to respond in the comments or send me thoughts via e-mail. I think I lean toward letting law students make their own decisions in this area, especially because some students are older, second-career types. But, given all the problems law students and lawyers face, I wonder if it would be valuable to require something like a one-credit, ungraded course of health and nutrition, which include some exercise time and general health instruction.
Friday, March 4, 2016
For those of you who talk about the recent problems at Volkswagen in your classes, this recently posted article may be useful. I connected with Charles Elson briefly when I lived in Delaware, and he is certainly an authority on corporate governance. The article is available here and the abstract is posted below.
Although the primary cause of the emissions scandal at Volkswagen appears to have been misfeasance and malfeasance on a corporate-wide scale, we argue that such a problematic culture existed at Volkswagen because of the composition of the board itself in combination with the unique governance structure known as “co-determination,” that defines many German companies, including VW. There are three major problems from a corporate governance standpoint with the Volkswagen board. First, is the interest-conflicting nature of the dual-class stock held by the dominant shareholding Porsche and Piech families. Second, is the presence of a government as a major shareholder. And third is the organization of its characteristically German “two-tier” board around the principle of co-determination, which mandated significant labor representation. We argue that each of these elements of the VW ownership and governance structure contributed in varying degrees to the board failure of oversight that led to the management decision to evade emissions regulations.
Presidential candidate Donald Trump has repeatedly stated that he never plans to eat Oreo cookies again because the Nabisco plant is closing and moving to Mexico. Trump, who has starred in an Oreo commercial in the past, is actually wrong about the nature of Nabisco’s move, and it’s unlikely that he will affect Nabisco’s sales notwithstanding his tremendous popularity among some in the electorate right now. Mr. Trump has also urged a boycott of Apple over how that company has handled the FBI’s request over the San Bernardino terrorist’s cell phone.
Strangely, I haven’t heard a call for a boycott of Apple products following shareholders’ rejection of a proposal to diversify the board last week. I would think that Reverend and former candidate Al Sharpton, who called for the boycott of the Oscars due to lack of diversity would call for a boycott of all things Apple. But alas, for now Trump seems to be the lone voice calling for such a move (and not because of diversity). In fact, I’ve never walked past an Apple Store without thinking that there must be a 50% off sale on the merchandise. There are times when the lines are literally out the door. Similarly, despite the #Oscarssowhite controversy and claims from many that the boycott worked because the Oscars had historically low ratings, viewership among black film enthusiasts was only down 2% this year.
So why do people constantly call for boycotts? According to a Freakonomics podcast from January, they don’t actually work. Historians and economists made it clear in interviews that they only succeed as part of an established social movement. In some cases they can backfire leading to a "buycott," as it did for Chik Fil A. The podcast also put into context much of what we believe are the boycott “success stories,” including the Montgomery Bus Boycott with Rosa Parks and the sit in movement related to apartheid in the 1980s.
I have spent much of my time looking at disclosure legislation that is based in part on the theory that informed consumers and socially-responsible investors will boycott or divest holdings (see here, here, and here). In particular, I have focused on the Dodd-Frank conflict minerals corporate governance disclosure and why I don’t think that using name and shame laws work—namely because consumers talk a good game in surveys but actually don’t purchase based on social criteria nearly as much as NGOs and legislators believe.
The SEC was supposed to decide whether to file a cert petition to the Supreme Court on the part of the conflict minerals legislation that was struck down on First Amendment grounds by March 9th but they now have an extension until April. Since I wrote an amicus brief in the case at the lower level, I have a particular interest in this filing. I had planned my business and human rights class on disclosures and boycotts around that cert. filing to make it even more relevant to my students, who will do a role play simulation drafted by Professor Erika George representing civil society (NGOs, investors, and other stakeholders), the electronics industry, the US government (state department, Congress, and SEC), Congolese militia, the Congolese government, and the Congolese people. The only group they won’t represent is US consumers, even though that’s the target group of the Dodd-Frank disclosure. I did tweak Professor George’s materials but purposely chose not to add in the US consumer group. After my students step out of their roles, we will have the honest discussions about their own views and buying habits. I’ll try not to burst any boycott bubbles.
March 4, 2016 in Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, Human Rights, International Business, International Law, Law School, Legislation, Marcia Narine, Securities Regulation, Shareholders, Teaching | Permalink | Comments (1)
Thursday, February 25, 2016
Next week is our Spring Break and I plan to catch up on some television and movie watching. Many of my former business associations students have raved about the show Billions, described online as follows:
Wealth, influence and corruption collide in this drama set in New York. Shrewd U.S. Attorney Chuck Rhoades is embroiled in a high-stakes game of predator vs. prey with the ambitious hedge-fund king, Bobby Axelrod. To date, Rhoades has never lost an insider trading case -- he's 81-0 -- but when criminal evidence turns up against Axelrod, he proceeds cautiously in building the case against Axelrod, who employs Rhoades' wife, psychiatrist Wendy, as a performance coach for his company. Wendy, who has been in her position longer than Chuck has been in his, refuses to give up her career for her husband's legal crusade against Axelrod. Both men use their intelligence, power and influence to outmaneuver the other in this battle over billions.
Now that my students are watching it, I feel compelled to do so as well, and not just because Australian papers play up the copious amounts of money and sex depicted in the series. I’m glad that my students are watching any television show that deals with the financial industry but even more gratified that they are emailing me telling me that now they understand some of the concepts that they see in this show and others such as HBO’s Silicon Valley.
Are there any other television shows or movies I should catch up on during Spring Break in between grading, writing, and watching Suits (for my Civil Procedure students)? I like to keep up with what my students watch because I use some of the story lines for in class hypos and exam questions. I also ask students to write reflection papers applying what they have learned in class and analyzing what Hollywood got wrong. I look forward to your suggestions.
Our Kentucky "brother," Tom Rutledge, sent me a link to a super blog post yesterday on Mortgage Grader Inc. v. Ward & Olivo, a limited liability partnership case currently before the New Jersey Supreme Court. Tom's focus in his post was the limited liability aspect of the case, which is fascinating--and more than a bit unsettling for those practicing in jurisdictions like New Jersey and Kentucky that require law firms organizing limited liability partnerships to maintain malpractice insurance. The question before the court: whether, in the absence of an express provision in the partnership statute, the failure of a law firm organized as a limited liability partnership to maintain required malpractice insurance results in the loss of the partnership's limited liability status. The trial court ruled that the lapse of malpractice insurance caused a loss of limited liability status; the appeals court reversed.
But Tom also mentions another aspect of the case in his post that I want to call out here. Specifically, he notes references in the appellate court opinion to the conversion of a partnership to a limited liability partnership. Here's what he says on that point:
One potentially disturbing aspect of the language used by the Court of Appeals and in the oral argument is the notion that the loss of LLP status and the treatment of the firm as a general partnership is some sort of conversion. But it isn’t. An LLP is a general partnership that has elected into a special status – it is still a general partnership but for the rule of partner limited liability. . . .
This comment reminded me of co-blogger Josh Fershee's super-helpful obsession (maybe too strong a word?) with "limited liability corporation" as an incorrect judicial (and other) descriptor of the limited liability company business form. (See, e.g., his December 2015 post here.) And far be it from me to disagree with either of these guys in making their respective points about these labeling inaccuracies!
As a separate point, I want to call out the fact that this area of partnership law can be important both for bar examinations (thinking of all those folks suffering through that test this week . . .) and IRL. In fact, I was asked a question recently about the Tennessee provision on limited liability elections by a BARBRI student. (Little-known fact: I teach the Tennessee BARBRI segments on agency, unincorporated entities, and personal property.) The student's question did not inappropriately refer to a conversion of a partnership into a limited liability partnership, but it did point out several differences in Tennessee law in this area that I want to mention.
Monday, February 22, 2016
Friday, February 19, 2016
I am posting this at the request of our Associate Dean for Academic Affairs, Alex Long:
The University of Tennessee invites applications for a possible visiting professor for the fall or spring semester in 2016-17. The position would involve teaching Business Associations and one other business-related course (including, perhaps, Contracts I or II). If interested, please submit a CV and cover letter via email to Alex Long, Associate Dean for Academic Affairs & Professor of Law, The University of Tennessee College of Law at email@example.com. Prior teaching experience (law school or broader university teaching) is strongly preferred. The closing date for applications is Monday, February 29, 2016.
I also am happy to respond to questions about this opening.
Thursday, February 18, 2016
Today I tried an experiment in flipping the classroom. Instead of lecturing in class, I sent my Civil Procedure students a number of videos to watch in advance so that we could work through complex problems during class. I admit that I did this because I dread teaching supplemental jurisdiction, but I was surprised by the positive feedback that I received from the students. This is a topic that confuses students every year and although we are not finished with the unit, it does seem less painful this time around. I did not use my own videos, but I will be developing some soon for both Civil Procedure and for the next time I teach Business Associations.
I use a modified version of the flipped classroom already for Business Associations when I send the students YouTube clips to help them increase their understanding on complex issues but it doesn’t come close to having the whole lecture on video so that we can focus on drafting or working through hypos. In my Transnational Business and Human Rights Class I also use videos and extensive at home readings and limited lecture so that we can do simulations, but again, that is not the classic flipped classroom model.
Have any of you experimented with a flipped classroom for all or some of your business courses? If so, what are the pros and cons? Please comment below or send me a private email at firstname.lastname@example.org.
Friday, February 5, 2016
Starting on the first day of my Advanced Business Associations course, I attempt to tease out the policy underpinnings and theoretical conceptions of entity law and, in particular, corporate law. This turns out to be a somewhat difficult task, since most students in the course, to the extent that they remember anything at all from their experience in the foundational Business Associations course, are more focused on what a corporation is and does than why we might have one in the first place. As the semester proceeds and the readings unfold, the students get more comfortable talking about the rationale for certain aspects of the corporate form and why corporate law structures and operating rules promise to achieve the goals of those organizing a firm as a corporation. But it's a slow process.
I have to believe that some of my fellow law professors face similar challenges with their students. I also believe that instructors in other educational settings face analogous difficulties when they incorporate abstract notions into the teaching of more "black letter" (for want of a better term at this point in my day) concepts. My approach has been to assign readings of primary and secondary material and use classroom discussion time and projects to reveal things about why the corporation exists, why venturers form them (as opposed to conducting business as sole proprietors or using another business form), and what issues we observe and might expect to observe as among corporate constituents as time unfolds. So, I plan to cover everything from the general role of entity law in fostering the conduct of business (by offering off-the-shelf rules for use by venturers in structuring and operating businesses) to notions of corporate personhood and the role of the corporation in society.
I am wondering if there is an alternative to my approach that any of you use in a similar course, or whether there is a particularly good set of foundational readings that you use to approach this set of issues in a business law offering. At the end of this semester, I will have taught this course in this general format twice, and I will be taking stock to shore it up to make sure the third time's a charm. [FYI, I start the semester with Bebchuk and Bainbridge, take a tour through the public company using the Disney case and its corporate documents, then move on to compare/contrast the publicly held firm with closely held corporations and unincorporated business associations before moving into some depth topics (M&A, complex business litigation, corporate social responsibility and the benefit corporation, etc.). It is a two-hour course.] Suggestions and other thoughts in comments or by email are welcomed.
Thursday, February 4, 2016
For the past four weeks I have been experimenting with a new class called Transnational Business and Human Rights. My students include law students, graduate students, journalists, and accountants. Only half have taken a business class and the other half have never taken a human rights class. This is a challenge, albeit, a fun one. During our first week, we discussed CSR, starting off with Milton Friedman. We then used a business school case study from Copenhagen and the students acted as the public relations executive for a Danish company that learned that its medical product was being used in the death penalty cocktail in the United States. This required students to consider the company’s corporate responsibility profile and commitments and provide advice to the CEO based on a number of factors that many hadn’t considered- the role of investors, consumer reactions, the pressure from NGOs, and the potential effect on the stock price for the Danish company based on its decisions. During the first three weeks the students have focused on the corporate perspective learning the language of the supply chain and enterprise risk management world.
This week they are playing the role of the state and critiquing and developing the National Action Plans that require states to develop incentives and penalties for corporations to minimize human rights impacts. Examining the NAPs, dictated by the UN Guiding Principles on Business and Human Rights, requires students to think through the consultation process that countries, including the United States, undertake with a number of stakeholders such as unions, academics, NGOs and businesses. To many of those in the human rights LLM program and even some of the traditional law students, this is all a foreign language and they are struggling with these different stakeholder perspectives.
Over the rest of the semester they will read and role play on up to the minute issues such as: 1) the recent Tech Terror Summit and the potential adverse effects of the right to privacy; 2) access to justice and forum non conveniens, arguing an appeal from a Canadian court’s decision related to Guatemalan protestors shot by security forces hired by a company incorporated in Canada with US headquarters; 3) the difficulties that even best in class companies such as Nestle have complying with their own commitments and certain disclosure laws when their supply chain uses both child labor and slaves; 4) the Dodd-Frank conflict minerals debate in the Democratic Republic of Congo and the EU, where students will play the role of the State Department, major companies such as Apple and Intel, the NGO community, and socially-responsible investors debating some key corporate governance and human rights issues; 5) corporate codes of conduct and the ethical, governance, and compliance aspects of entering the Cuban market, given the concerns about human rights and confiscated property; 6) corporate culpability for the human rights impacts of mega sporting events such as the Super Bowl, World Cup, and the Olympics; 7) human trafficking (I’m proud to have a speaker from my former company Ryder, a sponsor of Truckers Against Traffickers); 8) development finance, SEC disclosures, bilateral investment treaties, investor rights and the grievance mechanisms for people harmed by financed projects (the World Bank, IMF, and Ex-Im bank will be case studies); 9) the race to the bottom for companies trying to reduce labor expenses in supply chains using the garment industry as an example; and 10) a debate in which each student will represent the actual countries currently arguing for or against a binding treaty on business and human rights.
Of course, on a daily basis, business and human rights stories pop up in the news if you know where to look and that makes teaching this so much fun. We are focusing a critical lens on the United States as well as the rest of the world, and it's great to hear perspectives from those who have lived in Europe, Africa, Asia, and South America. It's a whole new world for many of the LLM and international students, but as I tell them if they want to go after the corporations and effect change, they need to understand the pressure points. Using business school case studies has provided them with insights that most of my students have never considered. Most important, regardless of whether the students embark on a human rights career, they will now have more experience seeing and arguing controversial issues from another vantage point. That’s an invaluable skill set for any advocate.
February 4, 2016 in Business Associations, Comparative Law, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Human Rights, International Business, International Law, Investment Banking, Law School, Lawyering, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (0)
Wednesday, January 27, 2016
As many of you know, I teach both traditional doctrinal and experiential learning courses in business law. I bring experiential learning to the doctrinal courses, and I bring doctrine to the experiential learning courses. I see the difference between doctrinal and experiential learning courses as a matter of emphasis. Among other things, this post explores the intersection between traditional classroom-based law teaching and experiential law teaching by analogizing business law drafting to yoga practice principles. This turned out to be harder than it "felt" when I first started to write it. So, the post may be wholly or partially unsuccessful. But I persevere . . . .
I begin by noting that we are, to some extent, in the midst of a critical juncture with respect to experiential learning in legal education. Some observers, including both legal practitioners and faculty, criticize the lack of experiential learning, noting that legal education is too theoretical and policy-oriented, resulting in the graduation of students who are ill-prepared for legal practice. Yet, other commentators note that too great an emphasis on experiential learning leaves students without the skills in theory and policy that they need to make useful interpretive judgments and novel arguments for their clients and to participate meaningfully in law reform efforts. Of course, different law schools have different programs of legal education (something not noted well enough, or at all, in many treatments of legal education). But even without taking that into account, many in and outside legal education (including, for example, in articles here and here) advise a law school curriculum that merges the two. I think about and struggle with constructively effectuating this all merger the time.
Now, about the yoga . . . . Most of you likely do not know that, in addition to teaching law, being a wife and mom, and other stuff, I enjoy an active yoga practice. As I finished a yoga class on Sunday afternoon, I realized that yoga has something to say about integrating doctrinal and experiential learning, especially when it comes to instruction on legal drafting in the business law area. Set forth below are the parallels that I observe between yoga and business law drafting. They are not perfect analogs, but they are, in my view, instructive in a number of ways important to the teaching mission in business law. The first two bullet points are, as I see it, especially important as expressions of the idea that law teaching is more complete and valuable when it holistically integrates doctrine, policy, theory, and skills. The rest of the bullets principally offer other insights.
Friday, January 22, 2016
I am taking a MOOC from University of Illinois and Coursera on digital marketing. I've been trying to take at least one course a semester. Both the underlying material, and the intricacies of online education have been interesting. I chose this course because I have family members in the digital marketing area, and I am taking (and discussing) this course with them.
Later, I may discuss some of the substantive take-aways from the course --- I have completed about 50% of the course so far --- but in this post I want to discuss business/academic entanglement.
In this digital marketing class, an assignment on co-creation (by firms & their customers) consisted of creating an online account with Starbucks, submitting an idea for consideration, and reporting how the idea was received by commenters. This was a useful exercise and it made the concept come alive, but I couldn't help wondering if Starbucks was somehow involved with University of Illinois and/or Coursera in creating this assignment. To be clear, I have no idea whether Starbucks was or was not involved. But, in any event, with the thousands (and maybe 10s of thousands) of people who are taking this course, this assignment seemed like a win for Starbucks. Well, actually, this idea submission portion of Starbucks' website was not functioning properly, leading to many, many complaints from the students on the course discussion boards, but the assignment could have been a big win for Starbucks. And eventually, a work-around was suggested, and I assume that many, many people still created online accounts with Starbucks when they might not have otherwise. The creation of those accounts, and the simple brand exposure, certainly has some value to Starbucks.
Anyway, my question is this: Are course creators ethically obligated to disclose entanglement or abstain from entanglement between businesses and their educational institutions?
Even if there is no entanglement (I am thinking about direct or indirect payments for the assignment), how should potential benefits to the educational institution be treated? For example, what if the University of Illinois plans to pitch Starbucks CEO Howard Schultz on making a contribution toward a new campus building and plans to bring up this assignment? Again, I don't know if there was any entanglement here, and I assume it was just an innocent and useful assignment. But with the increasing corporatization of higher education, I wonder about the appropriate boundaries between businesses and universities.
Thoughts from our readers are welcomed.
Wednesday, January 6, 2016
The AALS Section on Business Associations and Law is honoring 13 exemplary mentors for their contributions to scholarship, teaching and the development of new business law scholars. Those honored were nominated by fellow members of the AALS Section. The mentors will be recognized at the conclusion of the AALS BA Section meeting on January 8th (1:30-3:15) at the Annual AALS meeting in New York. Please join me in congratulating our colleagues and thanking them for their contributions to our field.
- Lynne L. Dallas (San Diego);
- Claire M. Dickerson (Tulane) (posthumous);
- Christopher R. Drahozal (Kansas);
- Egon Guttman (American);
- William A. “Bill” Klein (UCLA);
- Donald C. Langevoort (Georgetown);
- Juliet M. Moringiello (Widener Commonwealth);
- Marleen O’Connor (Stetson);
- Terry O’Neill (Emerita, Tulane);
- Charles “Chuck” R.T. O’Kelley (Seattle);
- Alyssa Christmas Rollock (formerly of Indiana-Bloomington);
- Roberta Romano (Yale); and
- D. Gordon Smith (BYU)
The AALS Annual meeting starts today in New York. The full program is available here, and listed below are two Section meeting announcements of particular interest to business law scholars:
Thursday, January 7th from 1:30 pm – 3:15 pm the SECTION ON AGENCY, PARTNERSHIP, LLC’S AND UNINCORPORATED ASSOCIATIONS, COSPONSORED BY TRANSACTIONAL LAW AND SKILLS will meet in the Murray Hill East, Second Floor, New York Hilton Midtown for a program titled:
"Contract is King, But Can It Govern Its Realm?"
The program will be moderated by Benjamin Means, University of South Carolina School of Law. Discussants include:
- Joan M. Heminway, University of Tennessee College of Law
- Lyman P.Q. Johnson, Washington and Lee University School of Law
- Mark J. Loewenstein, University of Colorado School of Law
- Mohsen Manesh, University of Oregon School of Law
- Sandra K. Miller, Professor, Widener University School of Business Administration, Chester, PA
BLPB hosted an online micro-symposium in advance of the Contract is King meeting. The wrap up from this robust discussion is available here.
Friday January 8th, from 1:30 pm – 3:15 pm join the SECTION ON BUSINESS ASSOCIATIONS AND LAW
AND ECONOMICS JOINT PROGRAM at the Sutton South, Second Floor, New York Hilton Midtown for a program titled:
"The Corporate Law and Economics Revolution Years Later: The Impact of Economics and Finance Scholarship on Modern Corporate Law".
The program will be moderated by Usha R. Rodrigues, University of Georgia School of Law, and feature the following speakers:
- Frank Easterbrook, Judge, U.S. Court of Appeals for the Seventh Circuit, Chicago, IL
- H. Kent Greenfield, Boston College Law School
- Roberta Romano, Yale Law School
- Tamara C. Belinfanti, New York Law School
- Kathryn Judge, Columbia University School of Law
- K. Sabeel Rahman, Brooklyn Law School
At the conclusion of the program, the officers of the Section on Business Associations would like to honor 13 faculty members
for their mentorship work throughout the year.
I hope to see many of you in New York soon!
January 6, 2016 in Anne Tucker, Conferences, Corporate Governance, Corporations, Delaware, Financial Markets, Joan Heminway, Law and Economics, Law School, Teaching, Unincorporated Entities | Permalink | Comments (0)
Thursday, December 31, 2015
The Five Corporate Scandals That Defined 2015 and Why I Resolve to Sneak More Ethics and Compliance into My Teaching
This is the time of year when many people make New Year’s resolutions, and I suppose that law professors do so as well. I’m taking a break from teaching business associations next semester. Instead, I will teach Business and Human Rights as well as Civil Procedure II. I love Civ Pro II because my twenty years of litigation experience comes in handy when we go through discovery. I focus a lot on ethical issues in civil procedure even though my 1Ls haven’t taken professional responsibility because I know that they get a lot of their context from TV shows like Suits, in which a young “lawyer” (who never went to law school) has a photographic memory and is mentored by a very aggressive senior partner whose ethics generally kick in just in the nick of time. It will also be easy to talk about ethical issues in business and human rights. What are the ethical, moral, financial, and societal implications of operating in countries with no regard for human rights and how should that impact a board’s decision to maximize shareholder value? Can socially-responsible investors really make a difference and when and how should they use their influence? Those discussions will be necessary, difficult, thought-provoking, and fun.
I confess that I don’t discuss ethics as much as I would like in my traditional business associations class even though some of my 2Ls and 3Ls have already taken professional responsibility. This is particularly egregious for me since I spent several years before joining academia as a compliance and ethics officer. I also use a skills book by Professor Michelle Harner, which actually has an ethics component in each exercise, but I often gloss over that section because many of my students haven't taken professional responsibility and I feel that I should focus on the pure "business" material. Business school students learn about business ethics, but law students generally don’t, even though they often counsel business clients when they graduate.
Yesterday, I tweeted an article naming five corporate scandals that defined 2015: (1) the Volkswagen emissions coverup (2) the "revelation" regarding Exxon’s research warning of man-made climate change as early as 1981 and its decision to spend money on climate change denial; (3) climate lobbying and the “gap between words and action,” in particular the companies that “tout their sustainability credentials” but are “members of influential trade associations lobbying against EU climate policy”; (4) the Brazil mining tragedy, which caused the worst environmental disaster in the country’s history, and in which several companies are denying responsibility; and (5) the “broken culture” (according to the Tokyo Stock Exchange) of Toshiba, which inflated its net profits by hundreds of millions of dollars over several years.
All of these multinational companies have in-house and outside counsel advising them, as did Enron, WorldCom, and any number of companies that have been embroiled in corporate scandal in the past. Stephen Bainbridge has written persuasively about the role of lawyers as gatekeepers. But what are we doing to train tomorrow's lawyers to prepare for this role? Practicing lawyers must take a certain number of ethics credits every few years as part of their continuing legal education obligation but we should do a better job as law professors of training law students to spot some of the tough ethical issues early on in every course we teach. This is especially true because many students who graduate today will work for small and medium-sized firms and will be advising small and medium-sized businesses. They won’t have the seemingly unlimited resources I had when I graduated in 1992 and went to work for BigLaw in New York. Many of the cases I worked on were staffed with layers of experienced lawyers, often in offices from around the world. If I naively missed an issue, someone else would likely see it.
So my resolution for 2016? The next time I teach business associations, I may spend a little less time on some of the background on Meinhard v. Salmon and more time on some of the ethical issues of that and the other cases and drafting exercises that my students work on. If you have ideas on how you weave ethics into your teaching, please comment below or email me at email@example.com.
I wish all of our readers a happy and healthy new year.
December 31, 2015 in Business Associations, Business School, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Human Rights, Law School, Marcia Narine, Teaching | Permalink | Comments (1)