Friday, February 27, 2015
I've enjoyed getting to know a bit about University of Pennsylvania Psychology Professor Angela Duckworth's work on "grit." Duckworth and her co-authors call grit "perseverance and passion for long-term goals," and they claim that grit can be predictive of certain types of success.
Can we, as educators, teach grit? If so, how? Duckworth asks, but doesn't fully answer these questions in her popular TED talk. She does, however, think Stanford Psychology Professor Carol Dweck's work on growth mindset, which I wrote about a few months ago, offers the most hope.
Do readers have any thoughts on this subject? Feel free to leave a comment or e-mail me your thoughts.
Friday, February 20, 2015
I have just finished a draft of an article arguing that disclosures don’t work because consumers and investors don’t read them, can’t understand them, don't take any real action when they do pay attention to them, and fail to change corporate behavior when they do threaten boycott. I specifically pointed out the relative lack of success of consumer protests over the years. I also noted that Wal-Mart continues to get bad press for how it treats its employees despite the fact the Norwegian Pension Fund divested hundreds of millions of dollars due to the company’s labor practices, prompting other governments and cities to follow. My thesis—it takes a lot more than divestment and threats of boycott to change company behavior. But perhaps I’m wrong. Yesterday, Wal-Mart CEO Doug McMillon announced a significant wage increase declaring:
We’re strengthening investments in our people to engage and inspire them to deliver superior customer experiences… We will earn the trust of all Walmart stakeholders by operating great retail businesses, ensuring world-class compliance, and doing good in the world through social and environmental programs in our communities.
The letter to Wal-Mart associates is here. I don’t know which was more striking, the $1 billion dollar move to $9 and then eventually $10 per hour or the fact that he used the word “stakeholders.” Wal-Mart also announced changes that would affect health insurance and shift scheduling, but the main headline concerned the wage hike. Main Street may be happy but Wall Street was not, and the stock price fell after the announcement. Others pointed out that the pay raise is still not enough to pull workers out of poverty.
Does this move mean that boycotts and advocacy really do work and that we will see more of them? Do I have to edit my article or will this be an anomaly? Will other big retailers or fast food chains follow? Will socially responsible investors reinvest in Wal-Mart? Is Wal-Mart trying to pre-empt government regulation on the minimum wage? Is Wal-Mart signaling to regulators in foreign countries that it cares about workers so should be allowed to operate there more freely?
I will be teaching a course in transnational business and international human rights in the Fall and Wal-Mart will be a case study. A few years ago, I used the company’s CSR report in my corporate governance, compliance, and social responsibility seminar. I asked the students to consider why Wal-Mart’s report looked and felt so different from Target’s, which essentially has many of the same labor issues. I wanted them to think about the marketing behind CSR from a reputational and regulatory perspective. I posited that Wal-Mart’s CSR report was written for regulators. Two weeks later, the company announced its massive and still ongoing bribery investigation. I’m happy for the workers but a bit curious as to what caused the company to make this announcement now. In the meantime, I will be watching the reaction from advocates, the markets, and other companies closely.
Tuesday, February 17, 2015
The internet age has brought tremendous access to information. As kids, many of us were used to the familiar refrain from our parents, "Go look it up." That meant getting out a dictionary or the Encyclopedia Britannica (volumes of books) to see if we could figure out unique facts about the Tasmanian Devil (my fourth-grade report subject), which is "the world's largest carnivorous marsupial." Things have changed.
Today, telling someone to look it up means a trip to the computer, and probably Google, Bing, Yahoo or some other search engine. Maybe it could mean a news service like the New York Times, and of course Westlaw, LexisNexis, or Bloomberg for legal issues. If I needed any evidence things have changed for all of us, I recently asked my nine-year-old son to put the "word book" he got out to help with his homework. He looked at me and asked, "You mean the dictionary?" Um, yeah.
Anyway, with all this information at our fingertips, I am regularly amazed how often I could tell people to, "Look it up." Students regularly ask me questions that they could easily look up themselves, and it happens with colleagues or vendors, too. I have always liked finding the answers to questions, so it usually doesn't bother me much. I like to be the source of information. But when it's really easy to find -- as in "What's the population of West Virginia?" -- it's a little disappointing.
In a time where people are often looking for an edge to make themselves more valuable to their employer, I suggest that people should be more inclined to look things up. Try to save questions for times when you really need the help.
Monday, February 16, 2015
It may just be my students, but it seems there is a renewed interest in business law careers among law students. Several of my students this year who had originally started down a path toward a career in another area of law have happily and passionately settled, somewhat late in the game, on being business lawyers. Somehow, after taking Business Associations and other foundational business law courses, they've been bit by the business law bug. And they are incredibly talented students--high up in their class in terms of rank and well worthy of employment in a firm or business or government. One is my research assistant.
We have been working together and with the folks in our Career Center to identify relevant geographical and employer markets. But I am seemingly engaged in a continuous struggle to help each of them (a) to enhance his resume to reflect his new-found business law passion (given that each already had accepted a second summer job somewhat or totally outside the business law area when he refocused on business law as a career path) and (b) to make the new connections that he needs to make in order to successfully pursue his revised career path. How can a middle-aged academic almost 15 years out of practice help a 3L business law job-seeker to make his resume more relevant, his contact list deeper, and his interviews more effective?
Thursday, February 12, 2015
My seventy business associations students work in law firms on group projects. Law students, unlike business students, don’t particularly like group work at first, even though it requires them to use the skills they will need most as lawyers—the abilities to negotiate, influence, listen, and compromise. Today, as they were doing their group work on buy-sell agreements for an LLC, I started drafting today’s blog post in which I intended to comment on co-blogger Joan Heminway’s post earlier this week about our presentation at Emory on teaching transactional law.
While I was drafting the post, I saw, ironically, an article featuring Professor Michelle Harner, the author of the very exercise that my students were working on. The article discussed various law school programs that were attempting to instill business skills in today’s law students. Most of the schools were training “practice ready” lawyers for big law firms and corporations. I have a different goal. My students will be like most US law school graduates and will work in firms of ten lawyers or less. If they do transactional work, it will likely be for small businesses. Accordingly, despite my BigLaw and in-house background, I try to focus a lot of the class discussion and group work on what they will see in their real world.
I realized midway through the time allotted in today’s class that the students were spending so much time parsing through the Delaware LLC statute and arguing about proposed changes to the operating agreement in the exercise that they would never finish in time. I announced to the class that they could leave 10 minutes early because they would need to spend at least another hour over the next day finishing their work. Instead most of the class stayed well past the end of class time arguing about provisions, thinking about negotiation tactics with the various members of the LLC, and figuring out which rules were mandatory and which were default. When I told them that they actually needed to vacate the room so another class could enter, a student said, “we just can’t get enough of business associations.” While this comment was meant to be a joke, I couldn’t help but be gratified by the passion that the students displayed while doing this in-class project. I have always believed that students learn best by doing something related to the statutes rather than reading the dry words crafted by legislators. My civil procedure students have told me that they feel “advanced” now that they have drafted complaints, answers, and client memos about Rule 15 amendments.
I am certainly no expert on how to engage law students, but I do recommend reading the article that Joan posted, and indeed the whole journal (15 Transactions: Tenn. J. Bus. L. 547 (2014). Finally, please share any ideas you have on keeping students interested in the classroom and prepared for the clients that await them.
February 12, 2015 in Business Associations, Business School, Conferences, Corporations, Delaware, Joan Heminway, Law School, LLCs, Marcia Narine, Negotiation, Teaching, Unincorporated Entities | Permalink | Comments (1)
Wednesday, February 4, 2015
I am a list maker. I make daily to do lists, grocery lists, research plans, workout schedules (that quickly get jettisoned) and complicated child care matrices necessary in two-career families. How else am I supposed to remember and keep on my radar all of the things that I am supposed to be doing now, or doing when I have time, or things that I can't forget to do in the future? One area where I feel deficient is in planning my conference travel/attendance. It always feels either a little ad hoc (ohh I got an invitation and I never say no to those!) or a little out habit (once you have presented at a conference it is easier to be asked to participate in future panels). Rarely does it feel like a part of an intentional plan for the year where I set out to prioritize conference A or break into conference B.
Realizing that this year there are 3 corporate law events within 10 days of each other is seriously making me reconsider my approach. I need a conference list-- a way to plan for the coming year, prioritize opportunities and frankly, schedule grandparent visits (read: child care) when I need to travel for more than a night or two.
Below is my running list of annual or nearly annual events, but I know that I am missing big pieces of the conference puzzle. Please contribute in the comments so we can create a list of some standard corporate law events (great for new teachers, great for those looking to expand their research circles, etc.). Updated to reflect suggestions in comments & put in approximate order of timing.
- AALS Annual (and Mid-year) Meeting (January; call for papers and/or invited participation spring & summer)
- Society for the Advancement of Behavioral Economics "SABE" (January; call for papers summer/fall)
- C-LEAF Junior Faculty Workshop (Feb. 27-28, 2015, a call for papers in the summer)
- Law and Entrepreneurship Retreat (UGA, March 21, 2015, a call for papers was released late 2014)
- Tulane Corporate Law Institute (March 2015 workshop; paid attendance & invited participation)
- Institute of Law & Economic Policy (ILEP) symposium (in April, by invitation)
- Annual Transactional Clinical Conference (occurs annually; April 24, 2015; call for paper circulated fall 2014)
- Law and Society Association "LSA" (late May 2015; calls for papers & coordinated panel submissions and round tables Fall 2014)
- National Business Law Scholars ( June 2015; call for papers available Dec. 2014)
- Berle Center Symposium at Seattle University (schedule varies; invited papers & attendance)
- Emory Teaching Transactional Law & Skills Conference (every 2 years usually in summer; call for papers announced)
- American Law & Economics Association (May 15, 2015; call for papers late fall terminated January 2015)
- Southeastern Association of Law Schools "SEALS" (July/August 2015; call for papers in the fall & coordinated panel submissions; papers due in spring)
- Midwestern Law and Economics Association "MLEA" (usually in the fall; call for papers late summer)
- Canadian Law and Economics Association Annual Meeting (Toronto, Fall 2015, a call for papers in the spring)
- ABA LLC Institute (usually October conference; workshop attendance & invited participation)
- Conference on Empirical Legal Studies (Wash U, October 30-31, 2015, a call for papers in the late spring)
- Corporate and Securities Litigation Workshop (Boston University, early November, expect a call for papers in the spring)
- Henry G. Manne Programs at George Mason ( programs occur throughout the year; workshop attendance)
- Various Harvard Law Corporate Governance Round Tables (programs occur throughout the year; invited attendance/ participation)
Monday, February 2, 2015
On December 22 and again on January 9, I posted the first two installments of a three-part series featuring the wit and wisdom of my former student, Brandon Whiteley, who successfully organized a student group to draft, propose, and instigate passage of Invest Tennessee, a state crowdfunding bill in Tennessee. The first post featured Brandon's observations on the legislative process, and the second post addressed key influences on the bill-that-became-law. This post, as earlier promised, includes Brandon's description of the important role that communication played in the Invest Tennessee endeavor. Here's what he related to me in that regard (as before, slightly edited for republication here).
Students, want to learn more in law school? Look back, not just forward. As the semester begins, instead of focusing solely on the new classes you’re taking, review the exams you took last semester. Those exams aren’t just for assigning you a grade; you can also use them as a learning tool.
Read the exam questions and your answers. Look at the professor’s comments on your exam and any model answers the professor has provided. What did you get wrong? What in the course did you misunderstand? If some areas are still unclear to you, make an appointment with the professor and review the exam with him or her.
If you do that, you’ll have a much better understanding of the courses you took than if you let your learning stop at the end of your final moment of exam preparation. Professors constantly reevaluate what we know and whether we’re right; you should too. You don’t want to carry that B grade into your legal career; you want to be an A lawyer. If you review your exams, you emerge from that review process with a better understanding of the subject matter.
You might think you’ll never use that material again, but it’s surprising what you draw on in practice. When I was in law school, back when we were chiseling our exam answers on stone tablets, I took a conflict of laws course just because I thought it was interesting. I didn’t think I would ever use it in practice. To my surprise, two years out of law school, I was faced with a major choice-of-law research question. Don’t assume you can leave those old courses behind when you graduate. And, if it comes up, you want to understand it as well as you possibly can.
Few of my students take advantage of the opportunity to review exams. I have never had more than a handful of students stop by to review their exams or even ask me questions about something on the exam. Some semesters, I see no students at all. I don’t even see students who did badly on my Business Associations exam and are taking more advanced courses from me. You would think those students especially would want to clear up where they went wrong.
I provide model answers, so it’s possible students are reviewing those, but I doubt it. My guess is that most students are thankful to have the past semester’s exams behind them and don’t look back as they breeze on to the next semester’s classes.
If students are interested only in earning the credit required for their eventual graduation, that attitude is understandable. But I hope that most of my students are interested in more than just obtaining a credential required to practice. I hope they’re interested in learning as much as they can to be the best lawyers they can be. If that’s their goal, they ought to be reviewing their exams.
Monday, January 26, 2015
For the last three years, I have been teaching my Accounting for Lawyers course as a distance education course. It’s only available to students at my law school, but everything except the final exam is online; there are no in-person classes. I think it’s worked well, better than the in-person accounting class I used to teach, but that’s a topic for another day. Today, I want to talk about four things I’ve learned teaching the course.
1. Law students are not used to “learning as they go.”
The typical law school class involves a single end-of-semester exam, and law students get used to pulling things together by cramming at the end of the semester. Almost all of my students read the daily assignments, but many of them, even some of the most conscientious students, really haven’t actively wrestled with the material.
I usually teach by the problem method, and I use books with a large number of problems. I strongly urge students to answer those problems before class. Almost all of my students read the problems before class; many of them think about the problems before class; but it’s clear that few of them have thoroughly worked their way through the problems .
In my online course, assignments are due every week. Students must learn the material as they go, or they won’t be able to do the assignments. Cramming at the end is not an option. They learn in the first couple of weeks that the shallower daily preparation that works in many law school classes won’t work in Accounting. As their study habits change, they learn more, but it requires a real adjustment on their parts.
2. Regular practice and feedback is important.
The educational literature stresses the value of regular practice and feedback (or even regular practice without feedback). I use the problem method in all of my classes because of that. It forces students to apply the materials on a daily basis, with in-class feedback from me. Seeing how much more students learn in my Accounting course, with its regular assignments and feedback, just reinforces that point.
3. If there’s an ambiguity in anything, at least one student will find it.
I didn’t really learn this lesson teaching the online course. It’s obvious every time I grade an exam. No matter how good the casebook, no matter how careful I am in class, some students will manage to misinterpret something. Law students are experts at finding ambiguity. This shouldn’t surprise us; it’s one of the things we teach them to do. The problem is often not due to a failure to read or listen, but a single-minded focus on some isolated statement taken out of context.
In a course like Accounting that has weekly assignments, I don’t have to wait until the final exam to see those misunderstandings, and I can correct them before they do too much damage. But seeing misunderstandings like this on a weekly basis has also made me much more careful in my other classes, more aware of possible ambiguities in the readings and what I say. I would rather over-explain than risk a semester-long misunderstanding.
4. Oral communication is better than written communication, especially for criticism.
In an online course, I’m forced to communicate with my students almost exclusively in writing. Writing, unlike direct, oral communication, is very bad at conveying nuance or sentiment. That difference is especially important when my communication is primarily critical, correcting and evaluating student work.
Students, like most of us (including me), are sensitive to criticism. And, unless one is very careful, they tend to see critical comments as more negative and personal than they are intended to be. As I’m not a particularly careful person when it comes to criticism or anything else (the word “blunderbuss” is relevant), this is problematic.
In person, my true intent comes through more easily. I recently heard, second-hand, a comment from a student who had taken Accounting and was now in one of my in-person classes. He reportedly said, “I thought Professor Bradford was really mean after Accounting, but I like him in this course.”
Thursday, January 22, 2015
I have just returned from Dublin, which may be one of my new favorite cities. For the fifth year in a row, I have had the pleasure of participating as a mentor in the LawWithoutWalls (“LWOW”) program run by University of Miami with sponsorship from the Eversheds law firm. LWOW describes itself as follows:
LawWithoutWalls, devised and led by Michele DeStefano, is a part-virtual, global, multi-disciplinary collaboratory that focuses on tackling the cutting edge issues at the intersection of law, business, technology, and innovation. LawWithoutWalls mission is to accelerate innovation in legal education and practice at the same time. We collaborate with 30 law and business schools and over 450 academics, students, technologists, venture capitalists, entrepreneurs, business professionals, and lawyers from around the world. We seek to change how today’s lawyers approach their practice and how tomorrow’s lawyers are educated and, in so doing, sharpen the skills needed to meet the challenges posed by the economic pressures, technologization, and globalization of the international legal market. We seek to create the future of law, today. Utilizing a blend of virtual and in-person techniques, LawWithoutWalls offers six initiatives: LWOW Student Offerings,LWOW Live, LWOW INC., and LWOW Xed.
I first joined the program as a practitioner mentor and have now served as an academic mentor for two years. Each team has students from law or business school who develop a project of worth addressing a problem in legal education or the legal profession. Mentors include an academic, a practitioner, an entrepreneur, and an LWOW alum.
In the LWOW Live version, the students and mentors meet for the first time in a foreign city (hence the trip to Dublin) and then never see each other in person again until the Conposium, a Shark-Tank like competition in April at the University of Miami, where they present their solution to a venture capitalist, academic, and practitioner in front of a live and virtual audience.
Over the period of a few months the students and mentors, who are all in different cities, work together and meet virtually. Students also attend mandatory weekly thought leader sessions. Past topics have included developments in legal practice around the world and the necessity of a business plan. For many law students, this brings what they learned in Professional Responsibility and Business Associations classes to life. At the Dublin kickoff, audience members watched actual live pitches to venture capitalists from three startups, learned about emotional intelligence and networking from internationally-renowned experts, and started brainstorming on mini projects of worth.
This year, I am coaching a virtual LWOW Compliance team working on a problem submitted by the Ethics Resource Center. My students attend school in London and Hamburg but hail from India and Singapore. My co-mentors include attorneys from Dentons and Holland and Knight. The winner of the LWOW Compliance competition will present their solution to the Ethics Resource Center in front of hundreds of compliance officers. In past years, I have had students in LWOW Live from Brazil, Israel, China, the US, South Africa, and Spain and mentees who served as in-house counsel or who were themselves start-up entrepreneurs or investors. Representatives from the firms that are disrupting the legal profession such as Legal Zoom serve as mentors to teams as well. In the past students have read books by Richard Susskind, who provides a somewhat pessimistic view of the future of the legal profession, but a view that students and mentors should hear.
As I sat through the conference, I remembered some of the takeaways from the AALS sessions in Washington in early January. The theme of that conference was “Legal Education at the Crossroads.” Speakers explained that firms and clients are telling the schools that they need graduates with skills and experience in project management, technology, international exposure, business acumen, emotional intelligence, leadership, and working in teams. Law schools on average don’t stress those skills but LWOW does. Just today, LWOW’s team members were described as "lawyers with solutions." I agree and I’m proud to be involved in shaping those solutions.
Monday, January 19, 2015
Today, unlike most Mondays during the school year, I will not be in the classroom. The University of Tennessee is closed in celebration of the life of Martin Luther King, Jr., our nation's iconic non-violent civil rights leader. Today also is the day that my daughter is in transit back to her college in New York for her last semester as an undergraduate. It seemed only fitting, honoring both occasions, to go out on Friday night with my daughter and my husband to see the movie Selma.
Despite its historical inaccuracies (which have been played out in the public media, e.g., here), the movie is a successful one. Among other things, it spoke to me of the amazing amount that one man can accomplish in a mere 39 years with focus, action, and perseverance. I admittedly felt a bit lazy and ineffectual by comparison.
Selma also reminded me, however, of the near daily opportunities that King had to speak out on matters of public importance. I wondered if there was anything in his teachings that would speak directly to me today. Specifically, I wondered if I could find something he'd said that helped to guide me as a business law professor in the current business law or legal education environment.
Of course, King spoke out against Jim Crow laws, which provided for legal segregation of the races in both businesses and education. But I was looking for something a bit more personal. Then, I found this quotation: "The function of education . . . is to teach one to think intensively and to think critically. . . . Intelligence plus character--that is the goal of true education."
Every U.S. law school, or at least every law school I’m aware of, offers a securities regulation course. But those courses usually focus on the Securities Act of 1933 and the Securities Exchange Act of 1934. A typical securities regulation course covers the definition of security, materiality, the registration of securities offerings under the Securities Act, and liability issues under both the Securities Act and the Exchange Act. If the professor is ambitious, those courses may also cover the regulation of securities markets and broker-dealers.
Almost none of those basic securities regulation courses spends any significant time on the 1940 Acts—the Investment Company Act and the Investment Advisers Act. It’s not because those two statutes are unimportant. A good proportion of American investment is through mutual funds and other regulated investment companies, not to mention hedge funds which depend upon Investment Company Act exemptions. And the investment advisory business is booming. When I attend gatherings of securities lawyers, I’m always amazed at how many of the lawyers present are dealing with issues under the 1940 Acts.
The lack of coverage of the 1940 Acts in the basic securities law course would be acceptable if law schools offered separate, stand-alone courses dealing with those issues, but many of them do not. I began teaching a course on the 1940 Acts in 1997. (I subsequently expanded the course to include a segment on the regulation of brokers.) At that time, you could count the number of law schools offering 1940 Act courses on one hand. Since then, more law schools have begun to offer such courses, but many law schools still do not.
Why are law schools not offering such an important business law course? One problem may be staffing. Many schools, including my own, have only one securities law professor. That person often also has to teach Business Associations, Mergers and Acquisitions, and other such courses, leaving no time for a second securities course. I have been able to offer my course only by rotating it with Mergers and Acquisitions on a biennial basis.
The lack of 1940 Act courses may also be due to the backgrounds of people teaching securities law. Some (certainly not all) securities law professors come from the litigation side of practice. Securities litigation centers on the 1933 and 1934 Acts. Litigation is a less important part of practice under the 1940 Acts, so many securities litigators aren’t exposed to it much.
A third problem is a lack of teaching materials. There isn’t much available on the 1940 Acts. I was lucky when I began teaching the course to discover a set of materials put together by Larry Barnett at Widener University. Those materials, supplemented with my own handouts and problems, have worked well. Unfortunately, Larry just retired and will no longer be updating his materials, so I’m not sure what I’m going to do now. I suspect more people would teach the course if more books were available, but there’s a chicken-and-egg problem. The major publishers aren’t interested in offering materials for a course that few schools teach.
Whatever the reason, the lack of such courses is a serious deficiency at any school preparing students for a securities law practice.
I'm interested to hear from commenters: are there any other courses law schools aren't teaching that are crucial to business law practice?
Friday, January 16, 2015
Every semester, in an attempt to learn my students' names and a bit about them, I ask my students to fill out a student information form with a few questions. This semester I added the question: "What do you think makes a professor effective?"
The vast majority of the responses fell into one of the four categories below (listed in order, from most to least responses):
- Real world experience/real world examples
- Fairness in grading
- Clarity in teaching
- Approachability and accessibility
I am teaching over 100 total students (undergraduate and MBA) this semester, and nearly every student mentioned something that would fall into at least one of those four categories.
Perhaps these responses do not surprise readers, and they were not incredibly surprising to me. The ordering, however, was a bit surprising, and I am not sure I would have expected to see "approachability" in the responses as much as I did. In any event, the responses were helpful in confirming that my time "staying current," meeting with local attorneys/business people, and consulting is well spent - at least in the eyes of my students.
Is there anything in the students' responses that is surprising to readers? Is there anything missing from the list? (There were plenty of other answers but most of the repeated answers fell into one of the four categories.)
Friday, January 9, 2015
A few weeks ago, I described to you a really special extracurricular project undertaken by one of my students, Brandon Whiteley, now an alum, this past year. The project? Proposing and securing legislative passage of Invest Tennessee, a Tennessee state securities law exemption for intrastate offerings that incorporates key features of crowdfunding. The legislation became effective on January 1.
In that first post, I described the project and Brandon's observations on the legislative process. This post highlights his description of the influences on the bill that became law. Here they are, with a few slight edits (and hyperlink inserts) from me.
Tuesday, January 6, 2015
Over at The Conglomerate, Usha Rodrigues says, "Larry Ribstein was wrong." Usha argues that she's right to teach LLCs at the end of the course, and Larry was of the mind that LLCs should play a more prominent role in the business entities course.
For my teaching, I'm with Larry on this, though I am also of the mind that Usha (and other teachers) may have different goals, so taking another tack is not wrong. I'm pretty sure we're all better teachers when we are true to ourselves and our thinking. For me, anyway, I am, without a doubt, at my worst in the classroom (and probably out) when I try to mimic someone else.
So here's how Usha explains her thinking:
I don't leave LLCs til the end of the semester because I think they're unimportant. It's because the cases are so damn thin. It's still such a new form, I just don't see much there there. Most of them wind up being trial courts who read the statute in completely stupid ways. Blech.
So I teach corporations and partnerships emphasizing fiduciary duty, default vs. mandatory rules, and the importance of the code. In fact, one semester I confess that I would ask a question and then intone, "Look to the code!" so often I felt like a Tolkien refugee. By the time I get to the LLCs cases, which are pretty basic, the class is ready for my message: the LLC is a new form. When dealing with something new, judges look both to the organizational statutes and to the organizational forms they know as they shape the law. Plus the LLC is such an interesting mix between the corporate and partnership form, it just makes sense to get through them both before diving in.
It's hard to argue with Usha's rationale. Like Larry, she's smart, and this is a reasonable take. For me, though, it doesn't work toward my goals, so I have a different point of view. I think it's more in line with where Larry was coming from, though I admit I don't know.
Here's why: I want students (and lawyers and courts) to treat LLCs as unique entities. Leaving them to the end of the course reinforces the idea that LLCs are hybrid entities the combine partnerships and corporations. I just don't think that's the right way to think about LLCs.
Certainly, it is true that LLCs share characteristics of partnerships and corporations. But partnerships and corporations can have similarities, too. We can, for example, refer back to the partnership case of Meinhard v. Salmon when discussing corporate fiduciary duties and corporate opportunity.
In my experience, teaching LLCs at the end of the course seemed to frame the LLC as an entity that is just pulling from partnership or corporate law. As such, it seemed the students were thinking that the real challenge for LLCs was figuring out whether to pull from partnership law or corporate law for an analogy. Part of the reason for that, I think, is that so many of the LLCs cases seem to think so, too. See, e.g., Flahive. As Usha would say, "Blech."
The LLC is prominent enough in today's world that I think it warrants a more prominent role in the introductory business organizations course. If we don't bring the LLCs more to the fore, we allow courts to continue to misconstrue the entity form, in part because we aren't giving students the tools they need to ensure courts understand the unique nature of the LLC.
I figure Usha can get students where she needs to on this regardless of how she teaches business associations. She is a lot smarter than I am. Given my goals and how I think about the LLC, though, I'll keep starting my class with an introduction to LLC formation, and I'll keep teaching LLC cases and issues throughout the semester.
Thursday, January 1, 2015
Happy New Year.
Starting Saturday morning (or maybe tomorrow night), I'll be live tweeting from the Association of American Law Schools (AALS) conference. Because I teach both civil procedure and business associations, my tweets will largely relate to those sessions as well as sessions for new law professors.
Next Thursday I will summarize the high points of the conference, at least from my perspective.
My twitter handle is @mlnarine and the AALS hashtag is #AALS2015. If you're at the conference and a blog reader, please say hello.
Tuesday, December 30, 2014
This week I received the notice below from Professor Jason Gordon. Professor Gordon is a legal studies and management professor at Georgia Gwinnett College, School of Business. As explained below, he is offering copies of two entrepreneurship books that he thought might be useful to BLPB readers.
I recently published two texts entitled Business Plans for Growth-Based Ventures and Understanding Business Entities for Entrepreneurs and Managers. These books are designed for use by clinical law professors and as a supplement in entrepreneurship courses. The second text concerns entity selection considerations, but includes entity funding and conversion considerations and specific considerations for startup ventures.
The texts also contain supplemental electronic material available for free at TheBusinessProfessor.com.
If any of you would like a free copy of either text in Amazon e-book format, please send me your email address at jgordon10 [at] ggc [dot] edu.
A preview of the Business Plans E-Book is available here.
A preview of the Business Entities E-Book is available here.
Monday, December 29, 2014
Grades are in--a few hours late, but in nevertheless. It must be almost time for New Year's Eve, syllabus and first-assignment posting, the AALS conferenece, the first day of classes, . . . and more job searching for our students!
I was reminded in an email from a student this morning that the hunt for summer and permanent law jobs is revving back up again after the holiday doldrums. The student, a 1L mentee seeking summer employment, was asking a few questions about my cover letter post, to which I eaerlier had referred him. I expect to start getting more of these communications from students about their job searches over the next few weeks.
Our brother bloggers over at the Law Skills Prof Blog have already struck while the iron is hot on this issue. Specifically, Lou Sirico posted a quip on dressing for job interviews the other day. The quoted advice? "The interviewer should remember what you said and not what you were wearing."
Hmm. Yeah. I guess so. Well, maybe not.
Certainly, that's the advice I was given by NYU Law's fabulous placement folks in "the day." Then, that meant wearing: a black, navy or midnight blue, or gray skirt suit; a neutral (white, ivory, gray, black) collared shirt or jewel-neck blouse; skin-tone hose; dark, solid-colored, medium-heeled pumps or really lovely flats; and either Barbara Bush pearls (the double strand) or a silk floppy bow tie (like an Hermes twilly, only not as fashion-forward). Bo-ring.
I am proud (but call me lucky) to have gotten my job wearing (to the initial interview) a deep pink--almost fuchsia--silk-blend skirt suit (midi-length skirt, hip-length jacket), with a white collared blouse, neutral hose, black flats, and a patterned (pink, blue, etc.) floppy silk bow tie. (This is where the folks in the UT Law Career Center lose faith that they are sending students to the right place when they refer them to me for career advice!) I was confident and radiant in that suit (although I am not sure I realized that fully at the time), and I am convinced that made a big difference in the reception that I got from people when I wore it. However, it's true that I was interviewed by a woman (a female senior associate in a multicolored silk dress with straight blond hair down to her derrière) and I was seeking employment at an entrepreneurial, individualistic firm--Skadden.
Monday, December 22, 2014
Effective as of January 1. 2015, Tennessee will allow Tennessee corporations to engage in intrastate offerings of securities to Tennessee residents over the internet without registration. The new law, adopted earlier this year, is the direct result of a law-student-led movement. The key student leader was one of my students, and he kept me informed about the effort as it moved along. (I was called upon for advice and commentary from time to time, but the bill is all their work.)
In my experience, this kind of effort--a student-initiated, non-credit, extracurricular engagement in business law reform--is almost unheard of. I was intrigued by the enterprise and impressed by its success. As a result, I asked the student leader, Brandon Whiteley, now an alumnus, to send me some of his perceptions about drafting and proposing the bill and getting it passed.
This is the first in a series of three posts that feature Brandon's observations on the legislative process, the key influences on the bill, and the importance of communication. This post highlights his commentary on the legislative process (which I have edited minimally with his consent). I think you'll agree that his wisdom and humor both shine through in this first installment (as well as the others). His organizational capabilities also are evident throughout.
Friday, December 19, 2014
In each of the classes I have taught I have offered extra credit for a reflection paper on how the media portrays the particular subject because most Americans, including law students, form their opinions about legal issues from television and the movies. Sometimes the media does a great job. I’m told by my friends who teach and practice criminal law that The Wire gets it right. Although I have never practiced criminal law, I assume that ABC’s How to Get Away With Murder, in which first-year students skip their other classes to both solve and commit murders, is probably less accurate. I do have some students who now watch CNBC because I show relevant clips in class. After a particularly heated on-air debate, one student called the network “the ESPN for business people.”
I’m looking for new fiction movies or TV shows to suggest to my students next semester. In addition to the standard business movies and documentaries, what makes your list of high-quality business-related shows? Friends, colleagues, and students have suggested the following traditional and nontraditional must-sees:
1) Game of Thrones (one student wrote about it in the partnership context)
2) House of Cards (not purely business, but shows how business and politics intersect)
3) House of Lies (a look at the world of management consulting)
4) Silicon Valley (one episode I saw talked about entity selection)
5) The Newsroom (during the last season writers tackled insider trading, hostile takeovers, and white knights)
6) Sons of Anarchy (I don’t watch this one so I can’t judge)
7) Shark Tank (not always a complete or accurate depiction but entertaining)
I look forward to your suggestions and to some binge-watching over the holidays.