Friday, November 14, 2014
As a relatively new parent, I have been amazed at the insatiable curiosity of our son (19-months old). Like most parents, I think my son is special, but I see this curiosity in most children around his age. These young children want to investigate everything and will try anything. They make a lot of mistakes, but they are constantly learning and they seem to love learning.
Curiosity comes quite naturally. Obedience, however, needs to be taught.
As a professor, I wish I could bottle my son’s curiosity and feed it to my students.
As a parent, I wish my young son obeyed as well as (most of) my students do.
But I wonder, do we sometimes trade curiosity for obedience? Sir Ken Robinson has spoken about the problem of schools killing creativity. (Creativity and curiousity are related, I think). As a parent and as a professor, his talk is challenging.
If you are not prepared to be wrong you will never come up with anything original…we are now running national education systems where mistakes are the worst things you can make. We are educating people out of their creative capacities…Picasso once said this, he said that “all children are born artists; the challenge is to remain an artist as we grow up”…we don’t grow into creativity, we grow out of it, or rather we get educated out of it.
Sir Ken Robinson's talk is somewhat depressing, because much of it rings true. His talk has been watched over 29 million times. Unfortunately, I couldn’t clearly identify his proposed solution. Maybe I need to dig into his more detailed work.
How do we teach discipline (which may be a better goal than mere obedience) without killing curiosity and creativity? I do not think discipline and curiosity are mutually exclusive, but they seem to be in tension a fair bit. As a parent, I am already terrified that my son will lose his curiosity. As a professor, I want to help my students recapture theirs.
Any thoughts would be appreciated.
Thursday, November 13, 2014
1) Difference between LLCs, corporations and partnerships
2) Del. and ULLCA coverage of fiduciary duties, and especially the issue of contractual waiver and default
19) No right to distributions, and no right to vote for distributions if manager-managed
20) No right to salary or employment
21) Taxable liability for LLC membership
22) Exit rights—voluntary withdrawals vs. restricted withdrawals, and whether or not that comes with the ability to force the return of an investment or a new status as a creditor of the LLC
23) Liability for improper distributions
24) Veil piercing, particularly given the lack of corporate formalities
I would love some feedback from practitioners as well. What do law students and practicing lawyers need to know about LLCs? What's missing from this list? What should I get rid of? Please feel free to comment below or to email your thoughts to email@example.com.
November 13, 2014 in Business Associations, C. Steven Bradford, Corporate Personality, Corporations, Delaware, Law School, LLCs, Marcia Narine, Partnership, Teaching, Unincorporated Entities | Permalink | Comments (1)
Tuesday, November 11, 2014
About four years ago, despite decades of actively avoiding the idea, I started running. I am no Forrest Gump, but I run 3.5 miles on a reasonably regular basis– usually four or five times a week, sometimes more, and rarely less. My primary running locations, North Dakota and then along the Monongahela River in West Virginia, are both quite windy. The North Dakota winds so are significant, that they can mimic hills, which is what allowed cyclist Andy Hampsten to train for hills in “one of the flattest areas in the world.”
I do a lot of out-and-back runs – out 1.75 miles and back along the same route. During such runs, I often notice a similar phenomenon: I may not have any idea it’s windy if the wind is at my back when I start running. When I get to my turnaround, though, I find a stiff wind in my face. This happens enough that I should probably figure out it is windy before I get to the turnaround, especially since it can lead to a faster pace on the way out, but I still rarely notice. I just think I’m having a good pace day.
In contrast, it’s pretty hard to miss when the wind is in your face. Everything feels hard. Everything feels sluggish and slow. And it feels like, all of a sudden, you have barriers in your way.
During these runs, it often makes me think about how many other places (in the figurative sense) this happens. We all have our challenges, and we often have much to overcome. But some have more challenges than others. Because our individual challenges are real, it can be easy to miss that we may have fewer challenges than other people have.
The things that are barriers to our goals are sometimes obvious to us. For example, as those in the current job hunt for a law professorship likely know, a lack of a top-14 law degree can be a significant limit on the number of options one might have entering the legal academy. It certainly felt like a barrier to certain jobs when I was on the market, anyway.
Because of that, it would be easy to discount other benefits I have because of who I am. I grew up in a safe neighborhood with good schools. I am a white male, which means people have expectations for me that are different than others. There is a level of presumed competence. And, comparatively, presumed authority and ability. If there's no more text visible, please click below to read the whole post.
Thursday, November 6, 2014
I have previously blogged about Institutional Shareholder Services’ policy survey and noted that a number of business groups, including the Chamber of Commerce, had significant concerns. In case you haven’t read Steve Bainbridge’s posts on the matter, he’s not a fan either.
Calling the ISS consultation period “a decision in search of a process,” the Chamber released its comment letter to ISS last week, and it cited Bainbridge's comment letter liberally. Some quotable quotes from the Chamber include:
Under ISS’ revised policy, according to the Consultation, “any single factor that may have previously resulted in a ‘For’ or ‘Against’ recommendation may be mitigated by other positive or negative aspects, respectively.” Of course, there is no delineation of what these “other positive or negative aspects” may be, how they would be weighted, or how they would be applied. This leaves public companies as well as ISS’ clients at sea as to what prompted a determination that previously would have seen ISS oppose more of these proposals. This is a change that would, if enacted, fly in the face of explicit SEC Staff Guidance on the obligations to verify the accuracy and current nature of information utilized in formulating voting recommendations.
The proposed new policy—as yet undefined and undisclosed—is also lacking in any foundation of empirical support… Indeed, a number of studies confirm that there is no empirical support for or against the proposition ISS seems eager to adopt.
[Regarding equity plan scorecards] there is no clear indication on the part of ISS as to what weight it will assign to each category of assessment—cost of plan, plan features, and company grant practices… this approach benefits ISS (and in particular its’ consulting operations), but does nothing to advance either corporate or shareholder interests or benefits. The Consultation also makes clear that, for all ISS’ purported interest in creating a more “nuanced” approach, in fact the proposed policy fosters a one-size-fits-all system that fails to take into account the different unique needs of companies and their investors.
Proxy votes cast in reliance on proxy voting policies based upon this Consultation cannot—by definition—be reasonably designed to further shareholder values.
ISS had a number of other recommendations but they didn’t raise the ire of Bainbridge and the Chamber. For the record, Steve is angry about the independent chair shareholder proposals, but please read his well-documented posts and judge for yourself whether ISS missed the mark. The ISS’ 2015 US Proxy Voting Guidelines were released today. Personally, I plan to raise some of the Guidelines discussing fee-shifting bylaws and exclusive venue provisions in both my Civil Procedure and Business Associations classes.
Let’s see how the Guidelines affect the next proxy season—the recommendations from the two-week comment period go into effect in February.
November 6, 2014 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Financial Markets, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (0)
Wednesday, October 29, 2014
The West Virginia University College of Law is seeking applications and nominations to replace our former dean, Joyce McConnell, who is now the provost of the University. The College of Law just completed the addition of a new wing (part of a $26 million infrastructure project), and has made significant and exciting progress. We're seeking a dean who can help continue that trend.
Admitting my bias, WVU is a great place to be. It's beautiful, especially in the fall, and we have access to much more than many people recognize. In addition to a solid opportunities to enjoy music and the arts in Morgantown, we're a lot closer to other areas of interest, if big city access is desired. We're 75 miles to Pittsburgh; about 3 hours and 15 minutes to Baltimore, Washington, DC, and Cleveland, OH; 6 hours to New York City; a little less to Niagara Falls; 5 hours to Philadelphia, PA, and Lexington, KY. You get the idea.
The posting is below. Please apply if you are interested, and please share this with anyone else you think might be interested. And, of course, please feel free to contact me directly with any questions.
The full posting is available at the link above or just click the button below.
Monday, October 20, 2014
I typically teach Corporate Finance as a planning and drafting course to 3L law students in the fall semester each academic year. (See my part of this transcription for some details.) This year is no different in that regard. I really like my Corporate Finance class this fall. The students all seem pretty motivated (although not in every class meeting) and are asking relevant "how to" questions in class.
I am in the midst of teaching my unit on convertible, exchangeable, and derivative instruments at the moment. This semester, I am teaching that unit in three 75-minute parts (after teaching one 75-minute class on hybrid instruments). The first part is an introduction to the instruments themselves. What are they and how do they operate? Where are the provisions authorizing them in state corporate law statutes? What do they look like and what are the key components of the operative (conversion, exchange, or exercise) provisions? The second part is a dive into the poison pill as an intriguing example. The third part is a look at common litigation issues affecting parties' rights under these kinds of instruments (focusing on things like the characterization of transactions not expressly provided for in determining the applicability and effect of antidilution adjustment provisions and interactions between conversion and redemption provisions).
I really enjoy teaching this part of the course, but I keep feeling like I am missing something. Do any of you teach planning and drafting in a corporate finance context? Do you focus on these instruments? If so, what topics do you teach and hone in on? I am writing a casebook for use in this kind of course and would love to make it relevant to as many folks as possible. Please respond in the comments here or in an email message. I would appreciate your feedback and guidance.
While you are at it (or even if you're not), I also would be grateful if folks would weigh in on whether hybrid instruments should be taught separately from or together with convertibles, exchangeables, and derivatives. Do you/would you teach convertibles, exchangeables, and derivatives as a type of hybrid instrument? Or would you call an instrument "hybrid" only if it, e.g., combines core elements of debt and equity at the same time? I look forward to reading what you have to say on any of this.
Friday, October 17, 2014
(Photo courtesy of Wikimedia Commons, by Patrick Delahanty from Louisville, United States)
Alison Lundergan Grimes and I both graduated from Rhodes College, a small liberal arts college in Memphis, TN. I have not spoken to Alison since college, so I was surprised to see her mentioned on CNN a number of weeks ago as the democratic nominee for U.S. Senator from Kentucky. Since then, she has been in the news quite a bit. She will face Minority Leader Mitch McConnell, in what has turned into one of the hotter Senate races this year.
Even in college I did not know Alison well, but we did take a public speaking class together. Alison was the type of student who was often in a suit and pearls in class, while I wore flip flops year-round and whatever wrinkled, Goodwill-purchased clothes were the most clean. She was a Chi Omega (easily the most refined group on campus), and I was a part of the football team for all four years (if there was a rowdier group on campus than the football team, it was the rugby club, which I joined because my playing time on the football team was minimal).
The public speaking class that Alison and I took together was definitely one of the most practical classes I took. Each student gave short speeches almost every day, and we were video-taped. We then watched and critiqued the videos as a class. Almost all of us had at least a few nervous habits, but we all appeared to break them after our nervous habits were seen on the screen and pointed out in front of the entire class. It was all quite embarrassing, but effective. I think there were only about a dozen of us in the class, which made this sort of personal attention possible. Our final exam was a presentation to an audience of 100 or more people, and our professor had lined up enough options for each of us, which must have taken a lot of time to organize.
I had some opportunities to do public speaking in law school. I know those who competed in moot court and trial advocacy had even more opportunities, but I think we should try to give our students even more chances to hone their public speaking skills. Regardless of post-graduation job, almost all students will need public speaking skills, even if their audiences are small. I try to include student presentations in as many of my classes as I practically can.
While we can all work public speaking into at least some of our classes, a required class fully dedicated to public speaking might be worthwhile. Do any law schools do this? I know public speaking is usually a part of a legal writing or litigation class, but I have not heard of a required course devoted specifically to public speaking.
Update: I should note that Alison is also legally trained. She is a graduate of American University's Washington College of Law.
Thursday, October 16, 2014
I plan to write a more traditional blog post later if I have time, but I am in the midst of midterm grading hell. I was amused today in class when a student compared the drama of the Francis v. United Jersey Bank case with the bankruptcy, bank, and mortgage fraud convictions of husband and wife Joe and Teresa Guidice from the reality TV hit the Real Housewives of New Jersey.
I had provided some color commentary courtesy of Reinier Kraakman and Jay Kesten’s The Story of Francis v. United Jersey Bank: When a Good Story Makes Bad Law, and apparently Mrs. Pritchard’s defenses reminded the student of Teresa Guidice’s pleas of ignorance. Other than being stories about New Jersey fraudsters, there aren’t a lot of similarities between the cases. Based on my quick skim of the indictment I don’t think that Teresa served on the board of any of the companies at issue--Joe apparently had an LLC and was the sole member, and the vast majority of the counts against the couple relate to their individual criminal conduct. In addition, Teresa is also going to jail, and no one suffered that fate in United Jersey. But luckily, she may see a big payday from a purported book deal and reality TV show spinoff after she’s out, possibly disproving the adage that crime doesn’t pay.
Friday, October 3, 2014
I am back teaching law students again this semester, in addition to teaching business school students. Last class, I did my "mid-course" teaching evaluations in the law school, which I do voluntarily each semester to gauge how the courses are going for the students. Almost always, I pick up on some important trends from the responses. One somewhat frustrating thing, however, is that students often want contradicting things. (e.g., "the previous class review is extremely helpful" and "the previous class review is a complete waste of time.")
The Lon Fuller quote below, from his article On Teaching Law, 3 Stan. L. Rev. 35, 42-43 (1950), helped me realize that some of the contradition, even within the same individual, is natural and expected.
Herein lies a dilemma for student and teacher. The good student really wants contradictory things from his legal education. He wants the thrill of exploring a wilderness and he wants to know where he stands every foot of the way. He wants a subject matter sufficiently malleable so that he can feel that he himself may help to shape it, so that he can have a sense of creative participation in defining and formulating it. At the same time he wants that subject so staked off and nailed down that he will feel no uneasiness in its presence and experience no fear that it may suddenly assume unfamiliar forms before his eyes.
No teacher is skillful enough to satisfy these incompatible demands. I don't think he should try. Rather he should help the student to understand himself, should help him to see that he wants (and very naturally and properly wants) inconsistent things of his legal education. Much frustration will be avoided if the student realizes that an unresolved antinomy runs through his education, and that this antinomy cannot be resolved so long as men want of life, as they do of the preparation for life called education, both security and adventure.
Thursday, October 2, 2014
For the second time, I have assigned my BA students to write their own shareholder proposals so that they can better understand the mechanics and the substance behind Rule 14-a8. As samples, I provided a link to over 500 proposals for the 2014 proxy season. We also went through the Apple Proxy Statement as a way to review corporate governance, the roles of the committees, and some other concepts we had discussed. As I reviewed the proposals this morning, I noticed that the student proposals varied widely with most relating to human rights, genetically modified food, environmental protection, online privacy, and other social factors. A few related to cumulative voting, split of the chair and CEO, poison pills, political spending, pay ratio, equity plans, and other executive compensation factors.
After they take their midterm next week, I will show them how well these proposals tend to do in the real world. Environmental, social, and governance factors (political spending and lobbying are included) constituted almost 42% of proposals, up from 36% in 2013, according to Equilar. Of note, 45% of proposals calling for a declassified board passed, with an average of 89% support, while only two proposals for the separation of chair and CEO passed. Astonishingly, Proxy Monitor, which looked at the 250 largest publicly-traded American companies, reports that just three people and their family members filed one third of all proposals. Only 4% of shareholder proposals were supported by a majority of voting shareholders. Only one of the 136 proposals related to social policy concerns in the Proxy Monitor data set passed, and that was an animal welfare proposal that the company actually supported.
I plan to use two of the student proposals verbatim on the final exam to test their ability to assess whether a company would be successful in an SEC No-Action letter process. Many of the students thought the exercise was helpful, although one of the students who was most meticulous with the assignment is now even more adamant that she does not want to do transactional law. Too bad, because she would make a great corporate lawyer. I have 7 weeks to convince her to change her mind.
October 2, 2014 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Financial Markets, Law School, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (0)
Wednesday, October 1, 2014
Yesterday, I shared with my faculty during our teaching conversations* my research and thinking on gender equality in the classroom. How do we handle gender in the classroom? My guess is that most of us teaching honestly strive to achieve and believe that we create a gender-neutral, or more accurately an equally-facilitative classroom environment. You can image the horror I felt when I received voluntary, anonymous student feedback last spring that said “you may not mean to or know you are doing this, but you treat men and women differently in class.” From whose perspective was this coming? How differently? And who gets the better treatment? I was baffled. As a female law professor, I was hoping that I got a pass on thinking critically about gender because I am female, right? Wrong.
This feedback launched my research into the area and a self-audit of the ways in which I may be explicitly treating students differently, implicitly reinforcing gender norms, and unintentionally creating a classroom environment that is different from my ideal.
Below are some observations and discoveries about my own behavior and a summary of some relevant research.
Tuesday, September 30, 2014
There is a growing drumbeat for banning laptops in the classroom, as a recent New Yorker article explained. The current case for banning laptops appeared on a Washington Post blog (among other places), in a piece written by Clay Shirky, who is a professor of media studies at New York University, and holds a joint appointment as an arts professor at NYU’s graduate Interactive Telecommunications Program in the Tisch School of the Arts, and as a Distinguished Writer in Residence in the journalism institute.
The piece makes a compelling case for banning laptops, and I agree there are a number of good reasons to do so. I’ll not recount the whole piece here (I recommend reading it), but here’s a key passage:
Anyone distracted in class doesn’t just lose out on the content of the discussion but creates a sense of permission that opting out is OK, and, worse, a haze of second-hand distraction for their peers. In an environment like this, students need support for the better angels of their nature (or at least the more intellectual angels), and they need defenses against the powerful short-term incentives to put off complex, frustrating tasks. That support and those defenses don’t just happen, and they are not limited to the individual’s choices. They are provided by social structure, and that structure is disproportionately provided by the professor, especially during the first weeks of class.
I am sympathetic to this line of thinking, and I am even more sympathetic to another point made in the article: that the laptop distractions can leak from one student engaging in social media or other non-classroom activities to those around them. That is a serious concern.
Still, I don’t ban laptops in my classes, though I have thought about it. I let students use them in my larger-enrollment classes: Business Organizations, which usually is near the cap of 70, and Energy Law, which is usually in the 34-55 range. There is no doubt the risk of distraction in those courses is higher than in others. Interestingly, in my last two seminar-style classes, I did not have a ban, either, but students rarely used laptops. They opted-in for the discussions (self-selection for certain topics can certainly help on that front).
I continue to think about how I want to proceed, but for now, I see value in allowing my students the option to choose how they wish to engage. There have been some other defenses of the idea of keeping laptops in the classroom (see, e.g., here), but my views are an amalgam of different styles and rationales.
First, part of learning, especially in becoming a life-long learner (which is what lawyers need to be), one must choose to engage. Law students are grown ups, and they must learn how they learn. They must decide. I won’t be there when they get to their job and they have to use the computer to actually do the work of a lawyer. They will, at some point, have to decide when to focus and when to play.
Second, I value diversity of styles in the classroom. That is, if most other professors are using open-book exams or take home exams, mine will probably be closed book, and closed note. I have taught using quizzes, blog posts, midterms, short papers, etc., to add some variety to the experience. Now that more classes, at least at my school, are without laptops, it actually gives me a reason to consider keeping them.
Finally, at least so far, allowing laptops is part of my deal with students. It’s part of how I connect and model for them my view and expectation that they are grown ups. I give them power, and I expect them to act appropriately. As my friend, former colleague, and teaching mentor Patti Alleva (recognized as one of the nation's best law teachers) explained in a recent National Law Journal piece, teaching is ultimately about respect and what she calls “intentionality.” She explains:
The simple fact is that teaching does not always produce learning, even if thoughtfully done. Creating that causal link between the two can be a mystifying challenge, especially given the infinite number of unknowable factors and forces that may reduce a teacher's effectiveness or a student's willingness or ability to learn.
. . . .
Teachers, as fiduciaries of their students' educational experience, owe them compassionate deference, based on a benefit of the doubt, coupled with high but reasonable expectations for a meaningful learning collaboration.
. . . .
Ultimately, the best professors are themselves students who learn as much as they teach. And they seek, not to impose ideas on students, but to help equip them with the metacognitive tools to test those ideas and use them in service of problem-solving. Hopefully, students will develop their own senses of respect — for the legal profession, for themselves as aspiring lawyers and for the learning partnership we share. So, if years ago, in that tense seminar room, each of us left with respect for our disagreements and for the pedagogic processes that allowed us to critically and creatively examine, and grow from, those differences, then invaluable learning did take place that day with respect providing a bridge between teaching and learning when other things may have temporarily obscured the connection.
I hope that as teachers we can all appreciate that we, like our students, have different views on the best way to teach and to learn. Just because we choose different paths, it doesn't make any path wrong. As long as the path is thoughtfully chosen, with a purpose and a goal, there’s a good chance it’s right for that teacher, in that moment, for that class. And if it’s not, the key is not about dwelling on the mistake. It’s about learning, adjusting, and doing a better job next time, because the best teachers really are the ones who are trying to “learn as much as they teach.”
Thursday, September 18, 2014
Teaching the definition of a "security" to business associations students who: 1) want to be litigators; 2) are afraid of math, finance, and accounting; 3) don't know anything about business; 4) only take the class because it's required; and 5) aren't allowed to distract themselves with electronics in class is no small feat.
Thankfully, as we were discussing the definition and exemptions, we also touched on IPOs. Many of the students knew nothing about IPOs but were already Alibaba customers and going through some of the registration statement made them understand the many reasons companies want to avoid going public. Of course, now that we went through some of the risk factors, my students who seemed gung ho about the IPO after watching some videos about the hype were a little less excited about it (good thing because they probably couldn't buy anyway).
Now if I can only figure out how to jazz up the corporate finance chapter next week.
September 18, 2014 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Financial Markets, Law School, Marcia Narine, Securities Regulation, Teaching | Permalink | Comments (2)
Thursday, September 11, 2014
Today started in Williston, ND, and we then went to Mountrail County. We vistied Tioga and Stanley, then headed south through New Town and Killdeer on the way back to Dickinson, where we stay tonight before flying out tomorrow morning (ridiculously early, I might add).
We started the day at Williston State College, where we learned about the TrainND program and other degree programs. TrainND works with companies to do OSHA and other safety training, and trained more than 16,000 people last, the vast majority of whom were employed. The College also offers degree programs for those seeking to be Lease Operators and PLC-trained operators. Interesting for academics, the college had 38% turnover last summer. The college has invested in campus housing for faculty, which can be part of the incentive package to bring people. Apartments run from $2600/mo for 1 and 2 BR options, with home rentals over $3K. Seventy percent of new faculty hires are moving into the new campus housing apartments (which looked nice from the outside). Just like the industry, the college is "catching up" with the whole thing.
We saw more densely packed well sites, such at this 9-pack (nine wells on one well pad). This is an advantage of hydraulic fracturing, in that one well pad can handle multiple wells, which leads to less land impact per well.
We also saw major traffic, including long lines of traffic coming over the
Four Bears Bridge at Lake Sakakawea. We didn't have a terrible time driving, and it was not the horror story that has been repeated at times, but it was striking to have open rolling hills with very few signs of people, other than wells, flares, and trucks.
We saw two natural gas faciltities, aswell, today, which is encourging, as it's important to have facilities to take the natural gas that's coming out of the ground along with the oil.
Also of interest was a waste water facility, which is critical to better oil production. I have written many times that the biggest concern about hydraulic fracturing in not the fracking or drilling process; it's surface concerns about spills of things like the waste water coming back up the well. (Drilling matters, too, but protecting ground water in that context is about good well casings, and the concerns are largely the same as conventional drilling.)
Such facilities are important, as they have helped vastly reduce the use of impoundment pits used for waste water in the early Bakken experience.
I heard for at least the third time today that the EPA is the biggest risk the industry faces. I continue to believe this is a red herring. That is, the biggest risk the industry faces is a major disaster from careless activities. It seems that many of the biggest concerns on that front are being handled well in North Dakota (better, in my sense, than in the Marcellus Shale). It's not to say everything is right, but there does seem to be a commitment to getting the process done well. Economic incentives are largely aligned with that goal, too.
The one thing that concerns me here, conceptually, is that people don't seem that concerned about water safety. I know most of the industry is working hard to keep things clean, but a bad chemical spill, oil spill, or waste water spill in the lake (picture above) could be disastrous. It's not that I have seen anything specific that makes me worry about the lake. I didn't. It's just that I'd prefer to hear, "We're worried about water contamination, but we're doing our best to prevent it." Instead, " I have have heard repeatedly, "Water issues aren't really a concern." I think that means that major issues haven't arisen, and not that people don't care, but that doesn't mean issue can't or won't arise.
Finally, as to the EPA, I don't think the EPA is poised to do much to slow hydraulic fracturing in oil country. And I don't think they should. That said, a major disaster would open the door to EPA or other federal action. Such a disaster would invite a shut down, and I know the industry doesn't want that. If the industry continues to improve, as it has since 2007, major disasters should be avoided. Here's hoping industry, regulators, and the people of the region continue to improve safety so that the benefits of heavy oil production increasingly outweigh the downsides. It can be done, and I sincerely hope it is.
Thursday, September 4, 2014
I have been an interviewee and an interviewer dozens upon dozens of times in my legal career. As a professor, drawing on my interviewing experience from both sides of the interview table, I spend a fair amount of time giving my students comments on their resumes and giving them advice before they go on interviews. Below are some of the comments that I find myself making consistently.
Generally, I think employers want to know three basics things about you as an interviewee: (1) are you capable?; (2) are you likeable? and (3) are you dedicated? (For the purposes of this post, I am going to assume you haven't given the employer any reason to question your intergrity, but, obviously, integrity is also extremely important.)
I describe each category in greater detail, and provide advice, after the break.
Friday, August 29, 2014
Rebecca Schuman authored a recent article in Slate entitled Syllabus Tyrannus: The decline and fall of the American university is written in 25-page course syllabi.
In the article Schuman complains that in the last twenty years syllabi have grown from 1-2 page simple documents with only the course location, required books, and assignments to “Ten, 15, even 20 pages of policies, rubrics, and required administrative boilerplate, some so ludicrous (“course-specific expected learning outcomes”) that I myself have never actually read parts of my own syllabi all the way through.”
While I won’t go as far as Professor Paul Horwitz goes in criticizing Schuman’s writing, I do want to push back a bit on her critique of “course-specific expected learning outcomes.”
I admit that bloated syllabi can be a bit cumbersome, but drafting what we at Belmont call “course objectives” can be a helpful process and can lead to important changes in the course. Believe it or not, each semester I look at my course objectives, evaluate whether they were met, and revise my courses as necessary. My course objectives have reminded me that I shouldn’t drop that undergraduate group presentation assignment, no matter how difficult it gets logistically. My course objectives have also reminded me that I just can’t switch to all multiple-choice exams, even if those tests are incredibly common in undergraduate courses today. (To be fair to those who teach undergraduate courses, they typically have 4-8 assessments in a course as opposed to 1-2 in a law school course).
Anyway, I think some of Schuman’s comments on syllabi bloat are valid, but this increase in disclosure is seen throughout our society as shown in Ben-Shahar & Schneider’s More than You Wanted to Know. While some of the disclosures may be a waste of time and resources, I found the drafting of course objectives helpful and think it will benefit the students through the more thoughtful structure of my courses (even if the students do not take the time to read the objectives themselves).
Finally and somewhat related, Professor Jennifer Bard notes (with some helpful links) that the ABA is now requiring law schools to draft learning outcomes. If law schools take this process seriously, I think it could be a useful exercise. If law schools just see it as another drain on resources and complete it mindlessly, then it is unlikely that those law schools or their students will benefit.
Monday, August 25, 2014
Students often ask me how they can improve their performance in my classes. There’s one thing they can do that will increase their learning with no additional work on their part: stop multitasking.
Multitasking is bad. The research is clear: students, even today’s students who grew up multitasking, learn less when they’re doing other things at the same time. See, for example, here and here. It’s a very simple point: if you surf the Internet, email, text, instant message, talk on the phone, or watch TV while you’re studying (or in the classroom), you learn less. Effective study (and work) requires focus.
It's such an easy, effortless way to improve learning: just focus exclusively on what you’re reading, without any distractions. Turn off instant messaging. Close the web browser and the email program. Silence your phone. Turn off the TV.
I make that point to my students at the beginning of my classes. but, for some of them, it just doesn’t sink in. I guess that shouldn't surprise me: people text while they're driving even as the casualties continue to mount.
I recently found an exercise on the Internet that illustrates the point in a straightforward, simple way. I’m going to distribute it to my students this year (with the author’s permission) and see if it helps. (For what it’s worth, it took me 34 seconds to complete the exercise without multitasking and 52 seconds to do it multitasking.)
Friday, August 22, 2014
I love a good debate and appreciate the opportunity (provided by Professor Bainbridge’s thoughtful post yesterday) to engage a bit more deeply on the thesis of Wednesday’s post suggesting an approach for how to incorporate Citizens United and Hobby Lobby into the survey BA/Corporations course.
By way of recap and ruthless summary, Stephen Bainbridge wants nothing to do with these issues (or other constitutional law questions) in his course because of the:
- Existing emphasis of public law over private law and resulting imbalance in law school curriculum;
- False impression that constitutional law is the holy grail of law teaching and practice;
- These cases present a hornet’s nest of controversial and divisive topics; and
- Coverage constraints. The menu options of what we can (should) teach is already more ambitious than time allows.
And to no surprise to anyone, anywhere: Stephen Bainbridge is right on the money with all of these points.
As a survey course and one that almost every student in my law school (Georgia State) takes, I feel a responsibility to provide context for the subject matter that we teach and to do my best to “hook” students who didn’t come to my class with an interest in corporate law.
First, hear me now when I say that corporate law matters. It matters to the business owners who form and operate a firm. It matters to the individuals and other businesses who interact with the firm as a supplier or customer or creditor or employee. These first two points are significantly incorporated into the traditional BA syllabus. Corporate law also matters to general members of society because corporations wield tremendous power in elections, in lobbying (regulatory capture anyone?), in shaping retirement savings, in religious and reproductive rights debates and setting other cultural norms around issues like corruption, sustainability, living wage, etc. Multi-national corporations with ubiquitous brand recognition aren’t the only powerful actors. The Hobby Lobby ruling tells us that those creatures governed largely by private law—the closely held corporation—also play a major role. To teach corporate law in a vacuum that ignores this broader context is to teach nuclear physics without discussing the atom bomb and its consequences (if I can use hyperbole). Should the broader context be the focus of the class? Absolutely not. Can it be woven into context setting discussions or used as a way to elicit student participation? In my class at least.
Second, not every student in BA enrolled out of pure self-interest; not everyone has a business background. I consider my course to be a great equalizer in law school: we take the health sciences majors, the B-schoolers, the political science and the anthropology kids and at the end of the semester everyone can explain basic financial concepts, the different menu options of firms, proxy fights, and even poison pills. We do this best when we can engage all of the students, which sometimes means helping students see why it might matter to them and how the subject connects with the things that they care about. For some that will be the clever ways you can use private agreements to shape outcomes and hedge against risk, for others it will be seeing why corporate law matters even if you don’t care about corporations (see paragraph above).
My last point is that being an effective classroom teacher generally requires a sense of self-awareness about your comfort zone, your strengths, and your weaknesses (among other things). I have lots of colleagues, at GSU and other institutions (many of them BLPB editors), whom I admire, but if I tried to teach class the way that they did, I would fall short of the mark. We teach to our own strengths and infuse classes with a sense of our own personality and passion. I don’t think I have convinced anyone not previously inclined to incorporate these materials; and I wonder if Stephen has caused any course corrections with his thoughts. We may have just reinforced the positions that you already held. Either way, happy teaching to all readers who have started or are preparing to start the new semester and the new school year.
On Wednesday, in my first set of fall semester classes, I mentioned Dweck’s descriptions of “fixed mindset” and “growth mindset” because I thought it might be helpful for students to consider.
Dweck says that those with a “fixed mindset” embrace a static view of intelligence, avoid challenges, get defensive in the face of obstacles and criticism, and are threatened by the success of others. People with a “fixed mindset” view failure as a negative verdict on their worth as a person. (pg. 244-46).
In contrast, Dweck says that those with a “growth mindset” believe that intelligence can be developed, embrace challenges, persist and learn in the face of obstacles and criticism, and are inspired by the success of others. People with a “growth mindset” view failure as an opportunity to learn and improve. (pg. 244-46).
To be clear, I (and Dweck) realize that there are limits to personal growth – otherwise I would be at an NFL practice right now instead of blogging – but it is helpful to realize that we can generally improve substantially with effort.
In the long run, Dweck finds that those with a “growth mindset” tend to outperform those with a “fixed mindset.” Dweck also finds evidence that people can change their dominant mindset over time.
I see students with both types of mindsets. You can spot the “fixed mindset” student easily – “I am not a C student!” The “growth mindset” student is just as easy to identify – “I got a C on this exam. I’d like to meet with you about my test and talk about how I can improve.”
Students are not the only ones who can learn from Dweck’s work. When faced with criticism, defensiveness feels natural to me, but I am, slowly, learning to unpack the criticism and look for lessons that could help me grow and improve.
Tuesday, August 19, 2014
At West Virginia University College of Law, we started classes yesterday, and I taught my first classes of the year: Energy Law in the morning and Business Organizations in the afternoon. As I do with a new year coming, I updated and revised my Business Organizations course for the fall. Last year, I moved over to using Unicorporated Business Entities, of which I am a co-author. I have my own corporations materials that I use to supplement the book so that I cover the full scope of agency, partnerships, LLCs, and corporations. So far, it's worked pretty well. I spent several years with Klein, Ramseyer and Bainbridge's Business Associations, Cases and Materials on Agency, Partnerships, and Corporations (KRB), which is a great casebook, in its own right.
I did not make the change merely (or even mostly) because I am a co-author. I made the change because I like the structure we use in our book. I had been trying to work with KRB in my structure, but this book is designed to teach in with the organization I prefer, which is more topical than entity by entity. I'll note that a little while ago, my co-blogger Steve Bradford asked, "Are We Teaching Business Associations Backwards?" Steve Bainbridge said, "No." He explained,
I've tried that approach twice. Once, when I was very young, using photocopied materials I cut and pasted from casebook drafts the authors kindly allowed me to use. Once by jumping around Klein, Ramseyer, and Bainbridge. Both times it was a disaster. Students found it very confusing (and boy did my evaluations show it!). It actually took more time than the entity by entity approach, because I ended up having to do a lot of review (e.g., "you'll remember from 2 weeks ago when we discussed LLCs most recently that ...."). There actually isn't all that much topic overlap. Among corporations, for example, you've got the business judgment rule, derivative suits, "duty" of good faith, executive compensation, the special rules for close corporations, proxies, and so on, most of which either don't apply to LLCs etc.... or don't deserve duplicative treatment.
I have great respect for Prof. Bainbridge, and his writing has influenced me greatly, but (not surprisingly), I come out more closely aligned with my perception of Larry Ribstein on such issues, and with Jeff Lipshaw, who commented,
I disagree about the lack of topic overlap, and suspect Larry Ribstein is raging about this in BA Heaven right now. . . .
This may reflect differences among student populations, but the traditional corporate law course, focusing primarily on public corporations, is less pertinent in many schools where students are unlikely to be doing that kind of work when they graduate. It's far more likely that they'll need to be able to explain to a client why the appropriate business form is a corporation or an LLC, and what the topical differences between them are.
I completely agree, and I would go another step to say that I find the duplication to be a valuable reinforcement mechanism that is worth (what I have seen as limited) extra time. I am teaching a 4-credit course, though, which gives me time I never had in my prior institution's 3-credit version.
One thing I am doing differently this year is my first assignment, which seeks to build on what I see as a need for students here. That is, I think many of them will need to be able to explain entity differences and help clients select the right option.
I had my students fill out the form for a West Virginia Limited Liability Company (PDF here). I had a few goals. First, I don't like to have students leave any of my classes without handling at least some of the forms or other documents they are likely to encounter in practice. Second, I did it without any instruction this time (I have used similar forms later in the course) because I thought it would help me tee up an introduction to all this issues I want them thinking about with regard to entity choice. (It did.) Finally, I like getting students to see the connection between the form and the statute. We can link though and see why the form requires certain issues, discuss waivable and nonwaivable provisions, and talk about things like entity purpose, freedom of contract, and the limits of limited liability.
If nothing else, the change kept things fresh for me. I welcome any comments and suggestions on any of this, and I wish everyone a great new academic year.