Friday, August 26, 2016
During the past few days, I have participated in a lot of meetings.
This has led to some thinking on what makes a good meeting.
To me, a useful meeting is one that accomplishes things that could not be handled appropriately by an e-mail. Some meetings are held, I am convinced, because those calling the meetings are not sure that participants read and pay attention to e-mails. This worry could be best addressed, in my opinion, by making expectations regarding e-mail management clear, perhaps coupled with consequences for those who ignore the contents.
That said, e-mail is not appropriate in all cases and here are four categories where in-person meetings can work better than e-mail:
- Inspire. Perhaps some can be inspired over e-mail, but it seems much easier to inspire in person. As such, I think some good meetings can be used to inspire participants to achieve organizational goals. But inspiring others, especially sometimes cynical professors, can be difficult to do.
- Build Relationships. Sometimes the only times you see certain colleagues are at faculty meetings, so meetings can be a good way to build relationships, especially if folks hang around before and after meetings or if significant time is given for small group discussion.
- Engage in Group Discussions. E-mail is pretty good for one-way communication, but as anyone who has been on a group e-mail with hundreds of replies knows, e-mail isn’t great for dynamic group conversation. As such, it may make sense to have meetings when a group needs to converse about working through an issue. That said, preparation for the meeting can often be done alone, and the lion-share of the conversation can be done in small groups.
- Engage in Difficult Conversations. When tone is important, e-mail is often inadequate. Thus, in-person meetings may be important for communication of sensitive or controversial information.
When meetings focus on things that cannot be done remotely, I think meetings can be quite useful. Similarly, when teaching, we should think – what is it that students cannot get through an e-mail, the internet, or an online class? We should focus on those things. As such, I am trying to do even more interactive projects and small group discussions in class this semester.
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.
Tuesday, August 9, 2016
Today marked the end of the 2016 conference of the Southeastern Association of Law Schools (SEALS). My discussion session on small business finance capped off the Workshop on Business Law, a series of business law programs at the conference, and closed out the conference itself just after Noon. It was great to share programs, at various points in the conference, with co-bloggers Josh Fershee, Ann Lipton, Haskell Murray, and Marcia Narine.
Here is a list of the three business law programs in the Workshop on Business Law from this year's conference:
- Discussion Group: Sustainability & Sustainable Business
- Discussion Group: Perspectives on the Future of White-Collar Crime
- Discussion Group: The Legal Aspects of Small Business Finance in the Crowdfunding Era
Other business law programs included several of the new scholar paper panels, the annual "Supreme Court Update" on "Business, Administrative, Securities, Tax, and Employment Issues," a discussion group focusing on "Big Data: Big Opportunities in Business and Government, and Big Challenges in Law and Ethics," and a discussion group in the SEALS "Works-in-Progress Series" that featured papers by veteran scholars on topics ranging from international food labeling regulation, to self-interest in financial regulation, to developing a better understanding of informational intermediaries in financial transactions, to the domestic and international regulation of non-financial disclosures.
I admit to jubilant exhaustion. As an organizer of SEALS programming, the week is always a bit of a marathon for me. But the effort is worth it. When I first came to the SEALS conference back in 2002, there was no organized business law programming. I am glad that a number of us working together ensure each year that the conference features robust, timely programming for business law teachers and scholars.
And that reminds me to mention two more things.
First, SEALS also is a great place to pick up new teaching and curricular ideas. This year's conference was no exception. I participated in a discussion session on "Strategies for Designing and Integrating Transactional Simulation Capstone Courses into the Curriculum" that covered a variety of different approaches to synthesis courses in the curriculum. I also moderated an engaging session on "Law School Specialization and Certification Programs."
Second, if you have ideas for programs for the 2017 conference, please let me know. Better yet, submit the program yourself through the SEALS website submission platform. Make sure if it is a business law session that you designate it for inclusion in the Workshop on Business Law.
I head back to Knoxville tomorrow morning to prepare for the new semester, which begins next week. No doubt some of you already are in the classroom and others will not be there for a week or more yet. Regardless, I wish you all well. I am happy to be recharged with new ideas from the SEALS conference--ideas that are a great stimulus to a productive semester and year. I hope you also find something to motivate and inspire you.
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.
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?
Monday, July 11, 2016
OK. I know it's not yet quite time to panic about syllabi and such for the fall semester. But that first day of class does approach, and I know some of you out there have already given some thought to innovating your teaching for the fall. Maybe you're new to teaching or teaching a new (or new-to-you) course. Maybe you're trying to spice up or change the direction of a course you've taught for a while. Maybe this post will give you some new food for thought . . . .
For a number of years, my colleague George Kuney, the Director of the business law center at UT Law, has asked students to invest in a particular Chapter 11 bankruptcy case as a capstone experience in his Bankruptcy and Reorganizations course. The students, working in pairs or small groups, are required to review all of the documents in the case docket and provide summaries that integrate those filings with learning from the course and supplemental research. George makes the resulting case studies available to the public. The cumulation of case studies created by students in this course has gotten quite impressive over the years. And the case studies get significant readership.
I often have said that it's hard for a law student to identify gaps in knowledge unless the student undertakes to write or speak about the law. George's exercise offers students the opportunity to both write and speak about the law in a practical setting. The final work product is a joint writing, but along the way, the students engage verbally to discuss between or among themselves what to present and how to present it in the final case study.
The project also helps students to see the immediate relevance of the law they are learning to find and apply in the course. Someone out there is using that law right now in a context that requires issue and rule identification and legal analysis and judgment. The students review and assess the decisions and actions of legal counsel and their clients real-time--just as the news media is reporting on those decisions and actions, in some cases. Wow.
I see a lot of value in this method of teaching. I am playing around with changing my Securities Regulation course (which next will be offered in the spring) to incorporate a smaller-scale version of an exercise like this. It may take me a while to come up with something that works, but I am going to give it a go. Let me know if you've used a project like this in any of your classes. I would be curious to know what folks are doing in this regard.
Monday, June 27, 2016
I am still at Berle VIII with Haskell Murray and Anne Tucker. One more day of my June Scholarship and Teaching Tour to go--and I have a final presentation to do. Then, back to Knoxville to stay until late in July. Whew!
As you may recall or know, my Berle appearance this week follows closely on the heels of a talk on the same work (on corporate purpose and litigation risk in publicly held U.S. benefit corporations) that I made at last week's 2016 National Business Law Scholars conference. While I am thinking about this conference, please join me in saving the date for the next one: the 2017 National Business Law Scholars conference. Next year's conference will be held June 8-9 at The University of Utah S. J. Quinney College of Law, with Jeff Schwartz hosting. I will post more information and the call for papers, etc. once I have it.
June 27, 2016 in Anne Tucker, Business Associations, Conferences, Corporate Finance, Corporate Governance, Corporate Personality, Corporations, CSR, Haskell Murray, Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (0)
Monday, June 13, 2016
This past week, I completed the second leg of my June Scholarship and Teaching Tour. My time at "Method in the Madness: The Art and Science of Teaching Transactional Law and Skills" at Emory University School of Law last week was two days well spent. I had a great time talking to attendees about my bylaw drafting module for our transaction simulation course, Representing Enterprises, and listening to others talk about their transactional law and skills teaching. Great stuff.
This week's portion of my academic tour begins with a teaching whistle-stop at the Nashville School of Law on Friday, continues with attendance (with my husband) at a former student's wedding in Nashville on Saturday evening, and ends (my husband and I hope) with Sunday brunch out with our son (and his girlfriend if she is available). Specifically, on Friday, I teach BARBRI for four hours in a live lecture. The topics? Well, I drew a short straw on that. I teach agency, unincorporated business associations (including a bit about both extant limited liability statutes in Tennessee), and personal property--all in four hours. Ugh. Although I am paid for the lecture and my expenses are covered, I would not have taken (and would not continue to take) this gig if I didn't believe that I could be of some help to students. These topics--especially agency and partnership law, but also personal property--often are tested on the bar exam. So, on I press.
I also am completing work this week on the draft article that I will present in Chicago and Seattle on the last two stops of my tour. I will say more about that article in next week's post. In the mean time, let me know if you have any suggestions (or good jokes) on the law of agency, partnerships, LLCs, or personal property (e.g., tenancies, gifts, bailments, adverse possession, replevin) for my lecture on Friday . . . . It's so hard to make these speed-lectures somewhat engaging for the students. [sigh]
Friday, June 10, 2016
I have been following Professor Angela Duckworth's work on grit for well over a year, so I was eager to read her new book, Grit: The Power of Passion and Perseverance. In fact, I can't remember the last time I bought and read a book within a few weeks of it being published.
The book is an easy read, written for a for a popular audience, and I was able to finish it in three relatively short sittings.
Below, I reflect on the book, hopefully in a balanced way.
Thesis. As may be evident from previous posts of mine, I like Duckworth's thesis - essentially, that passion and perseverance in pursuit of long-term goals are important in achieving success. Duckworth is careful to caveat her thesis, noting at hard work and passion are important, but are not the only factors that matter in achieving success. With this caveat, her thesis seems rather obvious and uninteresting.
Grit Scale. The Grit Scale Duckworth created for her studies seems easy to fake, and to her credit, she admits that it can be faked, like most self-reporting measures. Given the ability to fake the Grit Scale, I am not sure that it would be of much use in practical settings where the stakes are high (such as admissions or hiring). In one of the more interesting studies, Duckworth discusses how they gave the Grit Scale to West Point cadets before going through Beast Barracks (described as the toughest part of the four years). Supposedly, Grit scores did a nice job predicting who would stay and who would drop out. Given that the scale is easy to fake, maybe the interesting finding is not "those who actually have more grit perform better" but rather "those who think they have more grit (or are willing to lie that they have more grit) perform better.
Parenting and Teaching. As a parent, I appreciated her chapter on parenting for Grit (though she admits that these are just her thoughts, and unlike other parts of the book, the parenting chapter is lacking directly applicable scientific studies). In particular, she notes the importance of being both supportive and demanding. This is also fairly obvious, but easy to forget, hard to consistently apply, and important to remember. This instruction applies to teachers as well -- make clear that you have high expectations, but also communicate you are there to help and believe the students can meet the expectations with work. For a skeptics view, at least on the point of whether grit can be taught, see here.
Creativity, Talent, Structural Barriers: While Duckworth admits that there are other factors that contribute to success, I didn't think she made a strong case for grit being more important than creativity or talent. In fact, most of the gritty people she mentioned had certain natural advantages over many others. While grit may be needed to get things done, it seems like creativity and talent and access are all necessary and may be even more important than grit in some cases.
Anecdotes. There are a number of anecdotes in the book. The stories are less convincing than the academic studies, but the stories help illustrate her points. I especially liked the sports stories, including the ones about the UNC women's soccer team and the Seattle Seahawks. The coach of the UNC soccer team, for example, had his team memorize passages related to each team core value, and then also integrated the values into practices and games. Much better than a meaningless organization vision statement.
All in all, I think the book was worth reading, if only to stay current on some of the theories that are likely to be talked about by educators at all levels, and to inspire more passion and perseverance in general.
For a fair and thoughtful critique of Grit see here.
Monday, June 6, 2016
The first part of my June scholarship and teaching tour is now done. Having just returned from the Law and Society Association conference in New Orleans (about which I will say more in later posts), I now am preparing for my presentation on Friday at "Method in the Madness: The Art and Science of Teaching Transactional Law and Skills," this year's conference hosted by Emory University School of Law's Center for Transactional Law and Practice. Emory Law convenes these conferences every other year. The conferences always focus on teaching transactional business law and skills.
Here's the abstract for my presentation:
Drafting Corporate Bylaws: From Alpha to Omega
The archetypal introductory law school course in business associations law characteristically introduces students to corporate bylaws. Typically, course references to corporate bylaws occur in the context of corporate formation and in cases construing corporate bylaws in the context of private ordering, fundamental corporate changes, and the like. Treatment of the subject is necessarily somewhat superficial and episodic. Although students may be exposed to bylaw provisions and even, in some cases, a sample set of corporate bylaws, little time exists in the standard basic Business Associations course to address the optimal drafting process for drafting organic documents (including corporate bylaws).
An advanced business associations offering or a business planning course, however, provides a wonderful opportunity to engage students in this type of activity and give them a deeper appreciation for the governance significance of corporate bylaws. For the past two years, I have taught a module in Representing Enterprises, a transaction simulation course offered to participants in The University of Tennessee College of Law’s Concentration in Business Transactions, that focuses on drafting bylaws for a closely held start-up corporation organized under Tennessee law. The module offers a sequenced approach to the construction of corporate bylaws, starting with an in-depth survey of applicable statutory and decisional law, progressing through the identification of forms and norms, and ending with individual and group drafting exercises. The five class meetings (ten classroom hours in total over a period of two-and-a-half weeks) in the module engage facilitated peer-to-peer teaching and focus on relevant drafting processes (incorporating and reflecting on the students’ approaches to the required course assignments) and resulting outtakes (more precisely, takeaways).
In this presentation, I will share in more detail the content of and pedagogy involved in this course offering. As support, I will supply all participants with the module syllabus and the staged series of assignments that I give to the students to execute on the embodied learning objectives. This presentation should be particularly useful to those offering, planning on offering, or considering offering a business entity planning and drafting opportunity for law students. But it also may be valuable for those teaching introductory doctrinal offerings in business associations law.
If you cannot be at the conference and are interested in the materials supporting or PowerPoint slides for this presentation, please just let me know.
Also, you may want to note that many (most) presentations at the conference will be memorialized in a forthcoming volume of our student-edited business law journal, Transactions: Tennessee Journal of Business Law. Transactions has been a partner of Emory Law in its biennial conferences from the start. The Transactions volumes from the Emory Law conferences typically are quite popular among business law instructors. I use my copies a fair amount. So, you may want to get one of these, too. Just fyi: the book usually comes out in the spring semester following the conference. Also note that some of the included works are produced from transcripts of the proceedings (very tough to do) and some are papers prepared by the presenters on the topic of their presentation.
Atlanta, here I come!
Friday, June 3, 2016
Next week, I will post some reflections on the contents of the book, but for now, I would like to discuss professors publishing for a popular audience. Tongue-twisting alliteration unintended.
I am thankful that Duckworth wrote this book for a popular audience rather than in a way that would target a narrow slice of academia. Even as a professor myself, I find books written for popular audience easier to digest, especially if in a different discipline. While popular press books often oversimplify, I would rather a professor author a popular press book on her studies (and studies in her field) than have a journalist attempt to explain them. Also, while a popular press book may oversimplify, professors tend to be intentional about avoiding claims that are too sweeping. Note that in this interview, like the book, Duckworth is careful to state that grit is not the only thing that contributes to success. Finally, especially when the professor has done the background academic work first, as Duckworth did in many peer-reviewed journal articles, a popular press book can reach more people and inspire change and may eventually lead to broader engagement with the underlying academic articles.
Grit, as a popular press book, has already reached a large audience. Grit was published by Scribner: An Imprint of Simon & Schuster (not a university press) and jumped into the top-5 of The New York Times best-seller list for hardcover non-fiction. Duckworth had already reached well over a million people with her TED talk, and the book allowed her to be much more nuanced than she could be in a 6 minute speech. The TED talk was a gateway to her popular press book and perhaps her popular press book with be a gateway to the academic research she cites.
One problem with engaging a large, popular audience is that the professor may lose control of her message, and people may misinterpret the findings. Duckworth looks like she is staying engaged in the conversation, however, and has, for example, written to argue against grading schools on grit.
In short, there are certainly potential problems when writing about academic topics for a popular audience, but I am glad Duckworth took on the challenge and spread her research in this way. That said, as I will discuss next week, Grit does have weaknesses, in addition to its strengths.
Monday, May 30, 2016
This year, my research and writing season has started off with a bang. While grading papers and exams earlier this month, I finished writing one symposium piece and first-round-edited another. Today, I will put the final touches on PowerPoint slides for a presentation I give the second week in June (submission is required today for those) and start working on slides for the presentation I will give Friday.
All of this sets into motion a summer concert conference, Barbri, and symposium tour that (somewhere along the line) got a bit complicated. Here are the cities and dates:
New Orleans, LA - June 2-5
Atlanta, GA - June 10-11
Nashville, TN - June 17
Chicago, IL - June 23-24
Seattle, WA - June 27
I know some of my co-bloggers are joining me along the way. I look forward to seeing them. Each week, I will keep you posted on current events as best I can while managing the research and writing and presentation preparations. The topics of my summer research and teaching run the gamut from insider trading (through by-law drafting, agency, unincorporated business associations, personal property, and benefit corporations) to crowdfunding. A nice round lot.
This coming week, I will be at the Law and Society Association annual conference. My presentation at this conference relates to an early-stage project on U.S. insider trading cases. The title and abstract for the project and the currently envisioned initial paper (which I would, of course, already change in a number of ways) are as follows:
May 30, 2016 in Business Associations, Conferences, Corporate Finance, Corporate Governance, Corporations, Joan Heminway, Research/Scholarhip, Securities Regulation, Social Enterprise, Teaching, White Collar Crime, Writing | Permalink | Comments (0)
Friday, May 27, 2016
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.
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 email@example.com. Tulane University is an equal opportunity/affirmative action employer committed to excellence through diversity. All eligible candidates are invited to apply.