Thursday, January 19, 2017
Bernard Sharfman, a prolific author on corporate governance, has written his fourth article on the business judgment rule. The piece provides a thought-provoking look at a subject that all business law professors teach. He also received feedback from Myron Steele, former Chief Justice of the Delaware Supreme Court, and William Chandler III, former Chancellor of the Delaware Court of Chancery during the drafting process. I don’t think I will assign the article to my students, but I may take some of the insight when I get to this critical topic this semester. Sharfman has stated that he aims to change the way professors teach the BJR.
The abstract is below:
Anyone who has had the opportunity to teach corporate law understands how difficult it is to provide a compelling explanation of why the business judgment rule (Rule) is so important. To provide a better explanation of why this is so, this Article takes the approach that the Aronson formulation of the Rule is not the proper starting place. Instead, this Article begins by starting with a close read of two cases that initiated the application of the Rule under Delaware law, the Chancery and Supreme Court opinions in Bodell v. General Gas & Elec. By taking this approach, the following insights into the Rule were discovered that may not have been so readily apparent if the starting point was Aronson.
First, without the Rule, the raw power of equity could conceivably require all challenged Board decisions to undergo an entire fairness review. The Rule is the tool used by a court to restrain itself from implementing such a review. This is the most important function of the Rule. Second, as a result of equity needing to be restrained, there is no room in the Rule formulation for fairness; fairness and fiduciary duties must be mutually exclusive. Third, there are three policy drivers that underlie the use of the Rule. Protecting the Board’s statutory authority to run the company without the fear of its members being held liable for honest mistakes of judgment; respect for the private ordering of corporate governance arrangements which almost always grants extensive authority to the Board to make decisions on behalf of the corporation; and the recognition by the courts that they are not business experts, making deference to Board authority a necessity. Fourth, the Rule is an abstention doctrine not just in terms of precluding duty of care claims, but also by requiring the courts to abstain from an entire fairness review if there is no evidence of a breach in fiduciary duties or taint surrounding a Board decision. Fifth, stockholder wealth maximization (SWM) is the legal obligation of the Board and the Rule serves to support that purpose. The requirement of SWM enters into corporate law through a Board’s fiduciary duties as applied under the Rule, not statutory law. In essence, SWM is an equitable concept.
Thursday, December 8, 2016
A friend of mine is considering teaching his constitutional law seminar based almost entirely on current and future decisions by the President-elect. I would love to take that class. I thought of that when I saw this article about Mr. Trump’s creative use of Delaware LLCs for real estate and aircraft. Here in South Florida, we have a number of very wealthy residents, and my Business Associations students could value from learning about this real-life entity selection/jurisdictional exercise. Alas, I probably can’t squeeze a whole course out of his business interests. However, I am sure that using some examples from the headlines related to Trump and many of his appointees for key regulatory agencies will help bring some of the material to life.
Monday, November 28, 2016
Today, I share a quick teaching tip/suggestion.
I taught my last classes of the semester earlier today. For my Business Associations class, which met at 8:00 am, I was looking for a way to end the class meeting, tying things from the past few classes up in some way. I settled on using the facts from a case that I used to cover in a former casebook that is not in my current course text: Coggins et al. v. New England Patriots Football Club, Inc., et al. Here are the facts I presented:
- New England Patriots Football Club, Inc. (“NEPFC”), the corporation that owns the New England Patriots, has both voting and nonvoting shares of stock outstanding.
- The former president and owner of all of the voting shares of NEPFC, Sullivan, takes out a personal loan that only can be repaid if he owns all of the NEPFC stock outstanding.
- The board and Sullivan vote to merge NEPFC with and into a new corporation in which Sullivan would own all the shares.
- In the merger, holders of the nonvoting shares receive $15 per share for their common stock cashed out in the merger.
From this, I noted that three legal actions are common when shareholders are discontented with a cash-out merger transaction: appraisal actions, derivative actions for breach of fiduciary duty, and securities fraud actions. Shareholders in NEPFC brought all three types of action. (Footnote 9 of the Coggins case and the accompanying text explain that.)
Having just covered business combinations, including approval and appraisal rights, and wanting to address some new information about the process of derivative litigation, the facts from the case worked well. I am sure there are other cases or materials that also could have done the job. (Feel free to leave suggestions in the comments.) But adding a little football and conflicting interests to the last class seemed like the right idea . . . .
Monday, November 21, 2016
Thanks to all who responded to my query two weeks ago on teaching corporate fiduciary duties. I continue to contemplate your suggestions as I recover from the cold that has consumed me now for a week. Don't catch this version of the common cold! It's a bear.
Anyway, the weekend after I published that post, I presented at a super symposium on shareholder rights at the University of Oklahoma College of Law--"Confronting New Market Realities: Implications for Stockholder Rights to Vote, Sell, and Sue," hosted by the Oklahoma Law Review. (I spoke on rights to sell securities purchased in an offering exempt from registration under the CROWDFUND Act, Title III of the JOBS Act.) Although it was not part of the formal agenda for the symposium, I got a chance to chat informally with a group of folks at and after the conference, including our host, Megan Shaner, along with Jessica Erickson, Gordon Smith, and Vice Chancellor Travis Laster from the Delaware Chancery Court (among others) about fiduciary duty complexity. All, even the Vice Chancellor, had sympathy, offering ideas for simplifying corporate fiduciary duty law (as opposed to merely the teaching of it) that made sense. And it seems that among those of us in the academy, there are many ways this material currently is taught in an introductory Business Associations/Organizations or Corporations course.
Of course, I am not the only one worried about teaching the law of business associations. In extended discussions on the topic, co-blogger Marcia Narine raised a great question. In general, she asked how one might teach business associations law to a relatively small class. I understand that she in the past has taught 60-75 students in a four-credit-hour course. That's similar to my situation at UT Law. I typically teach up to 72 students (although I teach a three-credit-hour-course). But in the future, Marcia may teach as few as 30 students in her four-credit-hour offering.
She noted that she doesn't want to overburden the students or herself, but she wants to think about doing things differently. She floated the idea of more peer grading. I suggested in response that my oral midterm exam becomes more palatable in a smaller class. I also noted that I would generally use more skills training in that environment and maybe even introduce current events or group presentations (2-3 students in each group) over the course of the semester. But I also allowed as how I wouldn't try too many things all at once. In fact, I noted that she might be better off just deepening what she already does that works.
What ideas do you have? Do some of you teach a Business Associations class that includes as few as 30 students? Do you use any specific pedagogies or tools that may be especially useful in a course like Business Associations/Organizations--a basic doctrinal upper-division course--when taught to a 30-student class? Do you have any tricks of the trade you would feel comfortable offering? If so, please post them in the comments.
In other Business Associations teaching news, I requested and have received permission to increase my Advanced Business Associations offering to three credit-hours from two. This is great news. I use this course to focus in more on publicly held and closely held firms, business combinations, derivative and securities litigation, and social enterprise and corporate social responsibility topics. I ask the students to describe and assess the interaction among policy, theory, doctrine, and practice skills in corporate governance. I like to have the students read full cases and law review articles, in addition to teaching text and excerpts. (And I now plan to add Ann Lipton's new book chapter to the reading list this spring for the part of the course in which we cover the importance of bylaw amendments to contemporary corporate governance. Great timing.)
Bottom line? The course, structured this way, just felt too densely packed with only two hours per week of teaching time. So, my last two-credit-hour version of the course will be taught this spring. Then, I will revamp the syllabus to add the extra credit-hour for 2018. Interestingly, it was my students who came to me originally asking for the change, because they wanted to pause more over some of the material. I did, too. So, now I am not worried about this any more. One thing to take off the ever-growing list of Business Associations teaching worries . . . .
Monday, October 31, 2016
My October included some signifiant tricks and a bunch of parallel treats. I will highlight but a few of each here. They illustrate, in my view, the busy mid-semester lives that law professors may have.
It was a real trick for me to give three distinct presentations in three cities (two in person and one virtually) in a two-day period early in the month. On the morning of October 6, I participated in a panel discussion at The Crowdfunding Conference in New York City (New York). That afternoon, I jumped on a plane for Little Rock (Arkansas), where I gave a continuing legal education presentation on crowdfunding for the Arkansas Bar Association as part of a program on "Capital Raising Today and Securities Law Issues." Finally, later that day, I was Skyped into a the North Carolina Law Review 2016 annual symposium in Chapel Hill (North Carolina) on "The Role of Law in Entrepreneurship," at which I presented a draft paper, forthcoming in the North Carolina Law Review, on the important role of business finance lawyers in entrepreneurial enterprise.
It then was a trick to refocus my energy on faculty hiring a few days later. That next week, I jetted off to Washington (DC) with my fellow Appointments Committee members and our Dean and Associate Dean for Academic Affairs for a UT Law alumni reception and the Association of American Law Schools (AALS) 2016 Faculty Recruitment Conference. We were successful in interviewing a variety of folks for our two business law openings--one in the clinic and one in the doctrinal faculty.
After only a few nights home in my own bed, it was (again) a trick to haul my body into the car to drive to Lexington (Virginia) to participate in and attend the Washington and Lee Law Review's 2016 Lara D. Gass Annual Symposium, an event focusing on "Corporate Law, Governance, and Purpose: A Tribute to the Scholarship of Lyman Johnson and David Millon." At that symposium, my presentation addressed shareholder wealth maximization as a function of firm-level corporate governance. My essay on that topic will be published in a forthcoming issue of the Washington and Lee Law Review.
Before the next week was out, I accomplished yet another trick. I drove up to Louisville (Kentucky) to offer my thoughts on current securities litigation issues for the Kentucky Bar Association 2016 Securities Law Conference. I was asked to cover insider trading and liability under federal and state securities laws. In fulfillment of this charge, I delivered a presentation entitled "Where There’s a Securities Market, There’s Fraud (and Other Misconduct): Hot Topics in Federal Securities Litigation."
My final October trick? Fitting in my Business Associations oral midterm examinations and my Monday and Wednesday class meetings for Business Associations and Corporate Finance with all these trips.
All of that effort was an investment, however. The trips, presentations, and other interactions all yielded multiple benefits. Most of them may be obvious, but I will list a few in any case.
- I met lots of new and interesting folks from the crowdfunding industry, local bar associations, the AALS applicant pool, and the law academy (from the United States and abroad).
- I got great feedback on my current work and new ideas, research avenues, and citation sources for my ongoing work.
- I was able to honor two amazing colleagues, Lyman Johnson and David Millon.
- I participated meaningfully in the important task of recruiting new faculty to UT Law.
- I squeezed in some important family and personal time around the edges, including in attending the Knoxville Brewers Jam with my hubby (the tickets having been part of my anniversary gift to him back in August).
I am grateful for safe travels throughout the month. Having said that, I admit that I am relieved all that travel and activity is over and done. I look forward to a more calm November and a fun holiday season to follow. In the mean time, however, I will continue to enjoy the fall, with pumpkins being among my favorite hallmarks of the season.
Friday, October 28, 2016
Building on Joan’s personal reflection about her time in practice and stemming from a conversation with a student this week, I decided to post (and solicit comments) on the BigLaw practice areas that are most/least conducive to part-time work or work while raising children. While no practice areas in BigLaw are well known for being incredibly flexible, it did appear that certain practice areas were more flexible than others.
In my view, tax appeared to be the most flexible practice group area and M&A (my first practice group area) appeared to be the least flexible. Granted, I never practiced tax law, but as an M&A attorney you solicit comments from many areas within the firm and you get a sense of their schedules.
The advantages of the tax group were a high billing rate (some of the very highest in the firm) and a lot of piecemeal, often not urgent, work. Sure, we “urgently” needed tax comments on most of our deals, and when clients are paying BigLaw rates, they almost always want a prompt response. But in my limited experience, the tax lawyers controlled their timelines more so than any of the other attorneys I worked with. There were few enough excellent tax attorneys that if they said – I will get to that tomorrow or next week – you often did not have much recourse. Perhaps this was just my own perception or simply unique to my firms. That said, I have also seen tax lawyers pull off the “part-time” or "flexible schedule" role better and more often than other areas. Areas like Patent and ERISA may have similar attributes.
In M&A, however, flexible, part-time work was almost impossible to obtain. I’ve witnessed some M&A attorneys try to go part-time, and I have never seen it go very well or last very long. M&A attorneys are the quarterbacks of the deal, so even if you are only assigned to one deal – you have to be involved in all aspects of the deal and have to be on call 24/7 when that deal is moving quickly. And a deal often lasts for months. And there isn’t much piecemeal work that you can just pop in and do without staying intimately involved. After practicing in an M&A/Corporate group for a few years, I moved to a business litigation/corporate governance group. While the litigation/corporate governance group was not necessarily flexible, and you do have to be "all-in" if a case is heading to trial, there seemed to be a lot more room for flexible, part-time research and writing. In M&A there were some opportunities for these sorts of things, but many fewer of them and often they were simply nonbillable client alerts.
Again, maybe this is just my own perception, I’d love to hear thoughts in the comments or via e-mail from readers, as those thoughts could be helpful in advising students. Which practice group area or areas in a large firm offer the most flexibility?
Sunday, October 23, 2016
The Association of American Law Schools (AALS) Annual Meeting will be held Tuesday, January 3 – Saturday, January 7, 2017, in San Francisco. Readers of this blog who may be interested in programs associated with the AALS Section on Socio-Economics & the Society of Socio-Economics should click on the following link for the complete relevant schedule:
Specifically, I'd like to highlight the following programs:
On Wednesday, Jan. 4:
9:50 - 10:50 AM Concurrent Sessions:
- The Future of Corporate Governance:
How Do We Get From Here to Where We Need to Go?
andre cummings (Indiana Tech) Steven Ramirez (Loyola - Chicago)
Lynne Dallas (San Diego) - Co-Moderator Janis Sarra (British Columbia)
Kent Greenfield (Boston College) Faith Stevelman (New York)
Daniel Greenwood (Hofstra) Kellye Testy (Dean, Washington)
Kristin Johnson (Seton Hall) Cheryl Wade (St. John’s ) Co-Moderator
Lyman Johnson (Washington and Lee)
- Socio-Economics and Whistle-Blowers
William Black (Missouri - KC) Benjamin Edwards (Barry)
June Carbone (Minnesota) - Moderator Marcia Narine (St. Thomas)
1:45 - 2:45 PM Concurrent Sessions:
1. What is a Corporation?
Robert Ashford (Syracuse) Moderator Stefan Padfield (Akron)
Tamara Belinfanti (New York) Sabeel Rahman (Brooklyn)
Daniel Greenwood (Hofstra)
On Thursday, Jan. 5:
3:30 - 5:15 pm:
Section Programs for New Law Teachers
Principles of Socio-Economics
in Teaching, Scholarship, and Service
Robert Ashford (Syracuse) Lynne Dallas (San Diego)
William Black (Missouri - Kansas City) Michael Malloy (McGeorge)
June Carbone (Minnesota) Stefan Padfield (Akron)
On Saturday, Jan. 7:
10:30 am - 12:15 pm:
Economics, Poverty, and Inclusive Capitalism
Robert Ashford (Syracuse) Stefan Padfield (Akron)
Paul Davidson (Founding Editor Delos Putz (San Francisco)
Journal of Post-Keynesian Economics) Edward Rubin (Vanderbilt)
Richard Hattwick (Founding Editor,
Journal of Socio-Economics)
October 23, 2016 in Business Associations, Conferences, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Financial Markets, Law and Economics, Law School, Marcia Narine Weldon, Research/Scholarhip, Stefan J. Padfield, Teaching | Permalink | Comments (0)
Friday, October 21, 2016
Sadly, I am still in the midst of grading business associations and civil procedure midterms so I cannot finish my substantive post on Wells Fargo yet. WF is the gift that keeps on giving from a teaching perspective, though. Yesterday I showed students some of the litigation that has come out of the debacle to illustrate the difference between a direct and derivative suit (and to reinforce some civil procedure principles too).
Last night I took a break from grading to go to a Meetup called Ask a Start Up Lawyer. I hope to teach a 2-credit skills course on legal issues for startups, small businesses, and entrepreneurs next semester and I have found that going to these sessions and listening to actual entrepreneurs ask their questions helpful. Last night's meetup was partcularly enlightening because a number of international entrepreneurs here in Miami for a State Department initiative attended. While in the past some of these sessions have focused on funding options and entity selection, last night's "students" mainly wanted to learn about intellectual property and international protection. Many of them come from countries with no copyright law, for example. Others come from countries where owning shares is a rarity. Although my course will focus on domestic entities, given the South Florida market in which I teach, I may need to add some of these comparative components to my already ambitious draft syllabus covering tax, employment, entity selection, governance, IP, business torts, basic securities regulation, social entrepreneurship, and exit strategies.
If you have taught a course like this or have any ideas on materials to use, please comment below or send me a message at email@example.com.
Thursday, October 13, 2016
Today I used Wells Fargo as a teaching tool in Business Associations. Using this video from the end of September, I discussed the role of the independent directors, the New York Stock Exchange Listing Standards, the importance of the controversy over separate chair and CEO, 8Ks, and other governance principles. This video discussing ex-CEO Stumpf’s “retirement” allowed me to discuss the importance of succession planning, reputational issues, clawbacks and accountability, and potential SEC and DOJ investigations. This video lends itself nicely to a discussion of executive compensation. Finally, this video provides a preview for our discussion next week on whistleblowers, compliance, and the board’s Caremark duties.
Regular readers of this blog know that in my prior life I served as a deputy general counsel and compliance officer for a Fortune 500 Company. Next week when I am out from under all of the midterms I am grading, I will post a more substantive post on the Wells Fargo debacle. I have a lot to say and I imagine that there will be more fodder to come in the next few weeks. In the meantime, check out this related post by co-blogger Anne Tucker.
Friday, September 30, 2016
The Journal of Legal Studies Education ("JLSE") is accepting article and case study submissions. The JLSE is a peer-reviewed legal journal focused on pedagogy. In 2015, I published a case study with the JLSE, had an excellent experience, and received helpful comments from the reviewers. The announcement is below:
The Journal of Legal Studies Education is seeking submissions of manuscripts. The JLSE publishes refereed articles, teaching tips, and review of books. Manuscripts must relate to teaching, research, or related disciplines such as business ethics, business and society, public policy and individual areas of business law related specialties. The Editorial Board selects high quality manuscripts that are of interest to a substantial portion of its readers.
The JLSE is a double-blind peer-reviewed journal.
Please submit directly to Stephanie Greene, JLSE Editor-in-Chief, at firstname.lastname@example.org.
Stephanie M. Greene
Chair, Business Law Department
Professor, Business Law
Carroll School of Management
Chestnut Hill, MA 02467
Tuesday, September 27, 2016
As law professor, most of my students are Millennials. What does that mean? Well, Neil Howe and William Strauss, in their book Generations: The History of America's Future, 1584 to 2069, published in 1991, defined Millennials as those born between 1982 and 2004. I'll go with that. As one who is firmly part of Generation X (the age group and not the band, though that would be cool), I'm curious. It seems that some people think so. I don't think Gen Xers think of themselves as such very often.
What made me think of this? A political ad from NextGen Climate, funded by hedge fund billionaire/environmental activist Tom Steyer, apparently seeks to generate more support for Hillary Clinton by targeting Gary Johnson. The ad is below. The ad begins: "Thinking about voting for Gary Johnson? In case you missed it, climate change will cost millennials over $8 billion if no one does anything about it."
That's just weird to me. I know it's trying to motivate that age group of voters, but I am not sure many Millennials would think of themselves as such. That is -- does it resonate at all to have this ad targeted at them in that way?
I guess age-group labels like this are thrown around a lot, and I just forgot. The ABA has a mentoring article from 2004 called Generation X and The Millennials: What You Need to Know About Mentoring the New Generations. It's for "Boomers" who have to deal with us Gen Xers and Millennials. The piece makes some pretty bold assertions (some of which certainly aren't true twelve years later). For example:
All Millennials have one thing in common: They are new to the professional workplace. Therefore, they are definitely in need of mentoring, no matter how smart and confident they are. And they'll respond well to the personal attention. Because they appreciate structure and stability, mentoring Millennials should be more formal, with set meetings and a more authoritative attitude on the mentor's part.
Perhaps most of that is right. There is some value here, even though my experience is that formal mentoring is not always well received. Then again, maybe that's my bias. After all, "members of Generation X dislike authority and rigid work requirements. An effective mentoring relationship with them must be as hands-off as possible. . . .Gen Xers work best when they're given the desired outcome and then turned loose to figure out how to achieve it." I don't know about the first part, but last two sentences are definitely me.
So, while I find the description of Millennials a little overbearing, as I think about it, it explains a lot. I think a lot of us from the Gen X world can't understand why we can't tell students what we want and have them come back with a solution. That's what WE do, not necessarily what they do (unless we make it clear that's what we want).
I don't like broad generalizations of groups, but I have to admit that the 2004 article's suggestions for working with Millennials is actually consistent with a lot of what I have been doing (and working toward). I just never thought of it as trying to reach Millennials. I thought of it as trying to reach students. Turns out, in most cases, that's the same thing.
I remain skeptical of the likely efficacy of the ad, but maybe there's more here than I originally thought. Still, I'm not sure an anti-Gary Johnson ad gets anyone very far right about now.
Friday, September 23, 2016
In January 2015, I wrote about a resolution to take a break from e-mails on Saturdays.
That resolution failed, quickly.
Since then, I have been thinking a lot about my relationship with e-mail.
On one hand, I get a lot of positive feedback from students and colleagues about my responsiveness. On the other hand, constantly checking and responding to e-mails seems to cut against productivity on other (often more important) tasks.
Five or six weeks ago, I started drafting this post, hoping to share it after at least one week of only checking my e-mail two times a day (11am and 4pm). Then I changed the goal to three times a day (11am, 4pm, and 9pm and then 5am, 11am, 4pm). Efforts to limit e-mail in that rigid way failed, even though very little of what I do requires a response in less than 24 hours. On the positive side, I have been relatively good, recently, at not checking my e-mail when I am at home and my children are awake.
A few days ago, I read Andrew Sullivan’s Piece in the New York Magazine on “Distraction Sickness.” His piece is long, but worth reading. A short excerpt is included below:
[The smart phone] went from unknown to indispensable in less than a decade. The handful of spaces where it was once impossible to be connected — the airplane, the subway, the wilderness — are dwindling fast. Even hiker backpacks now come fitted with battery power for smartphones. Perhaps the only “safe space” that still exists is the shower. Am I exaggerating? A small but detailed 2015 study of young adults found that participants were using their phones five hours a day, at 85 separate times. Most of these interactions were for less than 30 seconds, but they add up. Just as revealing: The users weren’t fully aware of how addicted they were. They thought they picked up their phones half as much as they actually did. But whether they were aware of it or not, a new technology had seized control of around one-third of these young adults’ waking hours. . . . this new epidemic of distraction is our civilization’s specific weakness. And its threat is not so much to our minds, even as they shape-shift under the pressure. The threat is to our souls. At this rate, if the noise does not relent, we might even forget we have any. (emphasis added)
Academics seem to vary widely on how often they respond to e-mails, but I’d love to hear about the experience and practices of others. Oddly, in my experience with colleagues, those who are most prompt to respond to e-mails are usually also the most productive with their scholarship. I can’t really explain this, other than maybe these people are sitting at their computers more than others or are just ridiculously efficient. As with most things, I imagine there is an ideal balance to be pursued.
One thing I have learned is that setting expectations can be quite helpful. With students, I make clear on the first day of class and on the syllabus that e-mails will be returned within 24 business hours (though not necessarily more quickly than 24 business hours). I often respond to e-mails much more quickly than this, but this is helpful language to point a student to when he sends a 3am e-mail asking many substantive questions before an 8am exam.
Our students also struggle with "distraction sickness," and most of them know they are much too easily distracted by technology, but they are powerless against it. Ever since I banned laptops in my undergraduate classes, I have received many more thanks than pushback. The vast majority of students say they appreciate the technology break, but some can still be seen giving into the technology urge and (not so) secretly checking their phones.
Interested in how our readers manage their e-mails. Any tricks or rules that work for you? Feel free to e-mail me or leave your thoughts in the comments.
Wednesday, September 14, 2016
As you know, assessment is of critical importance these days, and I am confident that in a few years most, if not all, law school casebooks will come with effective, out-of-the-box, turnkey assessments. If you believe your book is already there, or even close, please send your pitch to me at email@example.com. Assuming no unforeseen problems, I plan to post these pitches here, as I am sure they will be of interest to many of our readers.
Monday, August 29, 2016
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?