Wednesday, October 1, 2014

Gender in the Classroom

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. 

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October 1, 2014 in Business Associations, Anne Tucker, Law School, Teaching | Permalink | Comments (2)

Tuesday, September 30, 2014

Why I Don't Ban Laptops (Yet)

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.”  

September 30, 2014 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (0)

Thursday, September 18, 2014

Alibaba and the forty (not really) risk factors

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

A Trip to the Bakken: Day 4

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.   9pack

We also saw major traffic, including long lines of traffic coming over the
BridgetrafficFour Bears Bridge at Lake Sakakawea.   LakeWe 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. 

  Flare2

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.)  
WasteacctpedSuch 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.

September 11, 2014 in Current Affairs, Entrepreneurship, Joshua P. Fershee, Teaching | Permalink | Comments (0)

Thursday, September 4, 2014

Resumes and Interviews

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.

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September 4, 2014 in Haskell Murray, Law School, Teaching | Permalink | Comments (4)

Friday, August 29, 2014

Course Objectives and Syllabi

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.    

August 29, 2014 in Business School, Haskell Murray, Law School, Teaching | Permalink | Comments (7)

Monday, August 25, 2014

An Easy Way for Students to Improve Their Law School Performance: Stop Multitasking

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.)

August 25, 2014 in C. Steven Bradford, Law School, Teaching | Permalink | Comments (0)

Friday, August 22, 2014

Corporate Constitutional Themes Pt.2

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:

  1. Existing emphasis of public law over private law and resulting imbalance in law school curriculum;
  2. False impression that constitutional law is the holy grail of law teaching and practice;
  3. These cases present a hornet’s nest of controversial and divisive topics; and
  4. 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.

-Anne Tucker

August 22, 2014 in Business Associations, Anne Tucker, Constitutional Law, Corporations, Law School, Teaching | Permalink | Comments (3)

Dweck on Mindset

This summer, on the recommendation of two colleagues, I read Mindset by Carol Dweck (Stanford Psychology Professor).

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.    

August 22, 2014 in Business School, Haskell Murray, Law School, Teaching | Permalink | Comments (0)

Tuesday, August 19, 2014

Summer's Over: More On Teaching Business Organizations

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.  

August 19, 2014 in Business Associations, Agency, Corporations, Joshua P. Fershee, Law School, LLCs, Partnership, Teaching | Permalink | Comments (1) | TrackBack (0)

Monday, August 18, 2014

More on Sports, Fashion, and Law

OK.  So, I am stretching a bit here.  But yoga may be considered a sport, athletic clothing is a kind of fashion, and securities fraud prohibitions and corporate director fiduciary duty involve law.  So, I stand by my blog title in the face of any criticism that may follow this post.

I do yoga four times a week when I am not traveling.  I also work out, sometimes on days when I am not doing yoga.  So, I have a fair number of pieces of yoga wear and other athletic clothing.  This means that I get regular mail and email solicitations from the firms that purvey these clothing items.

I recently received a catalog from one of my favorite athletic clothing brands, Sweaty Betty, which I discovered originally when I was teaching in Cambridge, England in one of our study abroad programs a few years ago.  I noticed, with some amusement, that the new catalog harps on the opacity of the firm's yoga bottoms or trousers (as the British like to call them).  The website does the same--"100% opaque" labels abound.  As an astute consumer and securities lawyer, I immediately jumped to the conclusion, whether right or wrong, that this yoga-bottoms advertising campaign is a reaction to the see-through yoga pants debacle of one of Sweaty Betty's competitors, Lululemon (another of my favorite brands).

What does business law have to do with this (apart from the many standard legal angles on the recall of products generally)?  As my securities regulation students from last spring well know (since it was the subject of part of their final exam), stockholders of Lululemon brought a securities fraud class action suit against Lululemon, after the recall of the see-through pants, based on alleged misrepresentations of material fact in public disclosures touting the high quality of its yoga pants.  Predictably (at least imho), the District Court dismissed the action back in April.  The court's opinion and order resulted in a few interesting online law firm commentaries with colorful titles (including posts from, e.g., Orrick and Weil).  The public fallout also includes (as most would guess) allegations of breaches of fiduciary duty and observations about insider trading and Rule 10b5-1 plans because of some well-timed trades by Lululemon's founder and then-CEO. 

As we think about the new semester (ours starts on Wednesday), the Sweaty Betty catalog reminded me to bring the Lululemon matter to the attention of our law faculty readers.  The facts and public reactions make for a nice case study of risk management in the context of securities regulation and fiduciary duty law.  A Stanford "Closer Look" piece, as well as many news reports, make the use of the case reasonably easy.  And for those of you who want to take a peak at my exam question, just ask . . . .

August 18, 2014 in Current Affairs, Joan Heminway, Securities Regulation, Sports, Teaching | Permalink | Comments (8)

Thursday, August 14, 2014

How I Try to Make Business Associations Less Terrifying for the “Suits” Crowd

A brief ten-question survey is one of the most effective tools I have used in my three years as an academic. I first used one when teaching professional responsibility and then used it for my employment law, corporate governance seminar, and business associations courses. I’m using it for the first time with my civil procedure students. I count class participation in all of my classes for a portion of their grade, and responding to the survey link by the first day of class is their first “A” or first “F” of the semester.

I use survey monkey but other services would work as well. The survey serves a number of uses. First, I will get an idea of how many students actually read my emails before next Tuesday’s first day of class—interestingly as of Thursday morning, 62% of my incoming 1Ls have completed their survey, while 42% of the BA students have done theirs. Second, my BA students work in mini law firms for a number of drafting exercises and simulations. The students can pick their own firms, but I designate a “financial expert” to each firm based upon the survey responses. I remind them that they should never leave the classroom thinking they are “experts” in the real world-- they are just experts compared to the "terrified." I use this tactic to avoid having all of the MBAs and bitcoin owners (yes, I had some last year) sit together and unintentionally intimidate the other firms with their perceived advantage.

Third, I get an idea of how students have learned about business prior to BA and what news sources they use. Fourth, I tailor my remarks and hypotheticals (when appropriate) to reach the litigators or those who plan to specialize in nontransactional work. I want them to know how BA will relate to the practice areas they think they will enter. I tell them on the first day that I went to Columbia for college because it didn’t have a math requirement and I planned to do public interest work, went to law school because the LSAT was the only graduate school entrance exam that had no math on it (ok- my professor Jack Greenberg at Columbia also said I should go). I tell them that I became a litigator to avoid business and spent my first years as a non-corporate person having to learn about FASB and the definition of a "security" because I was a big-firm commercial litigator. I tell them that when I went in-house I had to take accounting for lawyers and although I don’t love the accounting, we will discuss some basics because they never know where they will end up. Many of them mat even represent entrepreneurs. My first day speech is meant to reach the 79% of my students (as of this morning) who say they want to be litigators.

Finally, I feel as though I’m not walking in on the first day completely ignorant of my students. I often use the names or storylines from popular shows or movies in class when I can. The show Suits, by the way, is the runaway favorite for my 1Ls and I know my BA students watch it as well. My BA survey questions are below. If you are interested in seeing my Civ Pro questions, email me at mnarine@stu.edu.

1. Please enter your first and last name. If your name is hard to pronounce, please provide a phonetic spelling as well (rhymes with ___ or NUH-RHINE for Narine). 

2. Have you had any experience working in a legal setting (firm, court, agency, clinic, other) BEFORE coming to law school or DURING law school? Please answer yes or no and then describe the experience if you answered "yes".

 a) Yes- please complete comment box

 b) No

Other (please specify) 

3. Which type of practice appeals to you more?

 a) Planning (e.g. transactional)

 b) Dispute resolution (e.g. litigation)

 c) I do not plan to practice law after graduation

Other (please specify) 

4. Have you or a close family member ever owned a business?

 Yes, and I have been completely involved in management and/or business discussions

 Yes, and I have been somewhat or occasionally involved in management and/or business discussions

 Yes, but I have had no involvement in management and/or business discussions

 No

5. Do you own any stocks, bonds, other types of securities (individually or through a mutual fund or trust) or bitcoin?

 Yes

 No

6. Choose up to THREE fields of law in which you would most prefer to practice

 a) bankruptcy

 b) civil rights/constitutional law

 c) corporate and securities law (including business planning)

 d) criminal law (prosecution)

 e) criminal law (defense)

 f) labor and employment law

 g) trusts and estates

 h) family law

 i) health law

 j) immigration

 k) intellectual property

 l) real estate/land use

 m) litigation (plaintiff side)

 n) litigation (defense side)

 o) sports and entertainment

 p) tax

 q) other, please describe

Other (please specify) 

7. Do you have an MBA, business, finance, accounting, or economics degree?

Yes

No

8. Do you read any business related newspapers, magazines or blogs? Do you watch any business-related television shows or listen to podcasts or radio shows? If so, please name them.

9. Other than to pass the class, what are your learning goals for this course? Are there particular topics that interest or frighten you?

10. Please describe your level of familiarity with business, finance and/or accounting.

 I am an expert and could teach this class

 I have some experience, but could use a refresher

 I have no experience, but am willing to learn

 I am completely terrified

My goals this year: help my students think like business people so that they can add value, help them pass the bar, and most important, help them realize that business isn't so terrifying. Now I just have to get my Civ Pro students to realize that the show Franklin and Bash is probably not the best way to learn about legal practice.

 

August 14, 2014 in Business Associations, Corporate Governance, Corporations, Current Affairs, Entrepreneurship, Law School, Marcia Narine, Securities Regulation, Teaching, Television | Permalink | Comments (3)

Tuesday, August 12, 2014

Kinder Morgan: MLPs, C-Corps & Dividends, Oh My!

Kinder Morgan, a leading U.S. energy company, has proposed consolidating its Master Limited Partnerships (MLPs) under its parent company. If it happens, it would be the second largest energy merger in history (the Exxon and Mobil merger in 1998, estimated to be $110.1 billion in 2014 dollars, is still the top dog). 

Motley Fool details the deal this way:

Terms of the deal
The $71 billion deal is composed of $40 billion in Kinder Morgan Inc shares, $4 billion in cash, $27 billion in assumed debt. 

Existing shareholders of Kinder Morgan's MLPs will receive the following premiums for their units (based on friday's closing price):

  • Kinder Morgan Energy Partners: 12%
  • Kinder Morgan Management: 16.5%
  • El Paso Pipeline Partners: 15.4%
Existing unit holders of Kinder Morgan Energy Partners and El Paso Pipeline Partners are allowed to choose to receive payment in both cash and Kinder Morgan Inc shares or all cash. 
As I understand it, the exiting holders of the partnerships would have to pay taxes on the merger (this is partnership to a C-corp), but please, consult your tax professional.  
 
The goal here is said to be to increase dividend potential and use the C-corp structure to maximize opportunities that the MLP structure is now apparently less effective in generating.
 
I, for one, like that this company is seeking to generate income from real products, invest in new infrastructure, and pay dividends.  I'm no financial planner or investment consultant, but I like the idea of companies that offer dividend value rather than value to shareholders solely through increase share price. It seems to me it leads to better long term planning.  I am also intrgigued by the part of Richard Kinder story where he ended up not leading Enron.  As Forbes explained in 2012,
The most important man in the American Energy Boom wears brown slacks and a checkered shirt and sits in a modest corner office with unexceptional views of downtown Houston and some forgettable art on the wall. You would expect to at least see a big map showing pipelines stretching from coast to coast. Nope. “We don’t have sports tickets, we don’t have corporate jets,” growls Richard Kinder, 68, CEO of Kinder Morgan, America’s third-largest energy firm. “We don’t have stadiums named after us.”
I will be watching to see if this deal goes through, and I think the chance to have a big study in consolidating partnerships with a C-Corp could be a great teaching moment. Stay tuned! 
 
 

August 12, 2014 in Business Associations, Corporate Finance, Corporate Governance, Corporations, Current Affairs, Financial Markets, Joshua P. Fershee, Merger & Acquisitions, Partnership, Teaching, Unincorporated Entities | Permalink | Comments (0) | TrackBack (0)

Monday, August 4, 2014

The new face of legal services (and education)?

The New York Times spotlighted Michigan State's Reinvent Law Laboratory and Entrepreneurial Startup Competition in this article.

"[P]ushing its students to understand business and technology so that they can advise entrepreneurs in coming fields. The school wants them to think of themselves as potential founders of start-ups as well, and to operate fluidly in a legal environment that is being transformed by technology."

The article also highlights University of Colorado's Tech Lawyer Accelerator.

Fascinating stuff.  What is your school doing, if anything, on this front?

-Anne Tucker

August 4, 2014 in Anne Tucker, Entrepreneurship, Law School, Teaching, Web/Tech | Permalink | Comments (1)

Law Faculty Summer Research Stipends: Why and How?

Many of us are in the process of (perhaps frantically) wrapping up our summer scholarly activity and re-focusing our primary professional attention on teaching.  As always, I am using the annual conference sponsored by the Southeastern Association of Law Schools (SEALS) to help me make this transition.  Yesterday, I attended a discussion session led by law school associate deans and faculty who focus on faculty development--scholarship and teaching.  It was an incredibly interesting and wide-ranging discussion.

Part of the conversation centered around summer research stipends, a topic that has been in the national news a bit over the past few years.  Various participants in the discussion session addressed, each from his or her individual institution's vantage point, the reasons for/purposes of summer research stipends (which not every school represented at the session currently has) and how summer stipends actually work or should/could optimally work.  I was surprised by the variations in approaches and ideas from school to school.  While the individual models are too numerous to capture here, I summarize below the fold some of the top-level points made and thoughts shared during the discussion.

Continue reading

August 4, 2014 in Conferences, Joan Heminway, Law School, Teaching | Permalink | Comments (6)

Friday, July 25, 2014

Would Blind Review and Other Law Reviews Changes Impact P&T?

This post started off as a comment to co-blogger Haskell Murray's post Modifying the Law Review Submission and Review Process, and is perhaps overkill, but at least a few of us, thanks in part to Steve Bradford's post, are finding the conversation fruitful, so here we go:

In response to my suspicion that widespread law review changes could impact promotion and tenure (P&T) processes, Haskell writes: "I am not sure why the expectations for P&T would have to change if law reviews instituted blind review.  It seems that all blind review would do is make the selection process more fair."  

Maybe he is right, but here's my thinking: I  believe expectations for P&T would change because I believe that widespread blind review would increase the (already long) turnaround time for getting pieces accepted for publication.  If I am right (an open question) that it would increase the review time, it would make it harder for some faculty to get their pieces accepted, which is often required for it to "count" in the review process. Perhaps this would be a good thing, but I would see it as a potentially significant change. 

This could also impact higher ranked schools even more.  That is, Haskell has noted, people visiting at higher-ranked schools often find that visiting submission to be their most successful submission. (I’ve never had a top-20 or even top-40 school with my name for a submission, so I can’t say for certain.) It is my sense that higher-ranked schools get a bump with law reviews, and that's not always (ever?) fair, but if that bias went away, it could make it even harder to get through the P&T process at those schools without some modifying my understanding of some assessment measures. This is where I agree with Steve Bradford that if schools are using law review rankings as a proxy for quality, they are shirking their duties, but I still think many schools (or at least some people in schools) do.  Again, a change may lead to a good shift over all, but it would still be a shift.

I concede it’s possible that blind review could increase the quality of journals, but I think that would also need peer review to go along with it, which could, again, extend the reviewing timeframe.  For the current system, I think one of the reasons we don’t have blind review is that the system is full of proxies.  These proxies have perhaps been deemed desirable given that we have already ceded publication decisions to 2Ls and 3Ls, and open review gives those students more information.  I do think it may be more desirable and more fair to use blind review, though I think there’s also more likely we’d be swapping one problem for another if we don't add more seasoned reviewers to the mix.   In one of my earlier posts (linked in my recent one) other disciplines indicate peer review alone won't fix the problem, and I don't think just blind review will either.

I maintain that a faculty- and practitioner-assisted process (including blind reviews) would benefit law reviews and legal scholarship, but it means we’d all have to pitch in even more. (I support that, but it would need widespread buy in.)  My sense is that law reviews are slowly responding to the concerns and that we will see a better process result.  I think this whole discussion is a net positive, and I hope we’ll see more of an evolution.  As I have noted in my other posts, though, because I see value in many parts of law reviews, I think the coming changes should be an evolution and not a revolution.  

July 25, 2014 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (5)

Wednesday, July 23, 2014

Bringing Business Law into the Energy Law Class

As someone who teaches and researches both business law and energy law, I often focus on the overlap of the two areas, which I find to be significant.  One of my most recent projects has been to write a new casebook, Energy Law: A Context and Practice Casebook, which will be available for courses taught this fall. I wrote a detailed description of the book in a guest post at the Energy Law Professor blog, but here I wanted to highlight the business aspects of the book. 

The second chapter of my book is titled The Business of Energy Law.  That chapter begins with some key vocabulary, and I then provide students with a client issue to frame the reading for the chapter. The issue: 

Your firm has just taken on a new client who is a large shareholder in many companies. She is particularly concerned about her holdings in Energex, Inc., a publicly traded energy company. Energex was founded in 1977 by a oil and gas man from Louisiana who is still the CEO and a member of the board of directors. The client is concerned that the CEO is taking opportunities for himself that she thinks belong to Energex. As you read the following sections, consider: (1) What are the potential conflicts of interest the CEO might have? (2) Is it a conflict of interest if the activity is permitted under the CEO’s employment contract? (3) What kind of documents might be publicly available for review and where would you find them? (4) If it goes to litigation, what other information might you seek? From whom?

The first part of the chapter covers Business Organizations and Employment Law as Energy Law, including derivative suit and executive compensation contracts.  The chapter also has the following sections: Antitrust as Energy Law, Mergers and Acquisitions, and Entity Structure and Fiduciary Duties.  

Over the years, as I have taught my Energy Law Survey course and Business Organizations (as I do again this fall), I found that I can help make sense of things for students in each class when I borrow examples from the other class. My book helps make the connection concrete, and I hope it will help students understand more of the "why "to go along with the "what." As I often tell (preach to?) students, understanding business organizations is critical to all aspects of practice, regadless of where you intend to focus, whether it's energy law, environmental law, criminal law, or even family law.  

This fall should be fun. For me, at least.  

July 23, 2014 in Business Associations, Joshua P. Fershee, Law School, Teaching | Permalink | Comments (0)

Tuesday, July 22, 2014

The Value of the Imperfect Law Review System

Steve Bradford yesterday posted a thoughtful (as is usual for his posts) critique of law reviews. I had drafted a comment, but Steve suggested that I should post links to my prior posts separately, so here goes, along with (what has turned out to be a lot of) additional commentary.

I think Steve has some valid (and compelling) points. As I have written before, though, I can’t go as far as he does.  I won’t rehash all that I have written before on this subject, but one of my earlier posts, Some Thoughts for Law Review Editors and Law Review Authors covers a lot of that ground.  Please click below to read more: 

Continue reading

July 22, 2014 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (6)

Thursday, July 10, 2014

What can lawyers, professors and students learn from a corporate idealist?

In last week’s post about the business of the World Cup, I indicated that I would review Christine Bader’s book, The Evolution of a Corporate Idealist: When Girl Meets Oil. I have changed my mind, largely because I don’t have much to add to the great reviews the book has already received. Instead I would like to talk about how lawyers, professors and students can use the advice, even if they have no desire to do corporate social responsibility work as Bader did, or worse, they think CSR and signing on to voluntary UN initiatives is really a form of "bluewashing."

Bader earned an MBA and worked around the world on BP’s behalf on human rights initiatives. This role required her to work with indigenous peoples, government officials and her peers within BP convincing them of the merits of considering the human rights, social, and environmental impacts. She then worked with the UN and John Ruggie helping to develop the UN Guiding Principles on Business and Human Rights, a set of guidelines which outline the state duty to protect human rights, the corporate duty to respect human rights, and both the state and corporations' duty to provide judicial and non-judicial remedies to aggrieved parties. She now works as a lecturer at Columbia University, where she teaches human rights and business and she also advises BSR, which focuses on making businesses more sustainable. Her book tells her story but also quotes a number of other CSR professionals and how they have navigated through some of the world’s largest multinationals.

 Bader’s book has some important takeaways for all of us.

1)   In order to have influence, we have to learn to speak the language that our audience understands and appreciates- I tell my students that when they write exams for me, it’s all about me. Other professors want their exams written with certain catchphrases using the IRAC method, and I may want something different. One size does not fit all. Attorneys learn (or get replaced) that some clients want long memos, others want executive summaries and bullet points and all want plain English. Talking to a venture capitalist is different than talking to a circuit court judge. Similarly, many law professors are behind the curve. If we only talk to each other in the jargon of the academy and insulate ourselves, the rest of the world won’t have the benefit of our research because they won’t understand or want to read it. Academics have a lot to contribute, but we need to adapt to our audience whether it’s policymakers, judges, our peers or law students.

 2)   Sometimes we have to be less passionate in making our arguments and appeal to what’s important to our audience- This point relates to Point 1. Bader regularly met with a number of constituencies and was understandably zealous in trying to convince others, internally and externally, about her positions. She and other “corporate idealists” from other firms often learned the importance of language- making a business case to certain internal stakeholders meant talking in terms of the bottom line rather than using the maxim “it’s the right thing to do” or “doing well by doing good.” Good attorneys know how to represent their clients without taking things personally because sometimes the passion can actually dilute effectiveness. As law professors, we need to teach our students to be more effective so that they know how and when to modulate their tone, and how to pivot and change the way they frame their arguments when they can’t convince the recipient of their message.

3)   Almost everything comes down to risk management- Bader often had to focus on risk management and mitigation when her moral arguments fell on deaf ears. Those who teach business should make sure that students have a basic understanding of the pressure points that business people face. For some it may be tax liability. For others it may be the appropriate exit strategy. In essence, it all comes down to understanding the client’s risk profile and being able to advise accordingly. Litigators should also understand risk profiles so that they can develop an appropriate settlement strategy and help their client’s work their way through some of the unexpected pitfalls that may arise over the course of the case.

4)   Building relationships is a critical skill- Bader learned that social interactions with her peers at BP and the external stakeholders after hours greatly increased her effectiveness in dealing with thorny issues that arose during business hours. Lawyers often believe that if they have the substantive knowledge, they are the smartest people in the room. Law firms don’t teach young associates about the importance of emotional intelligence and building relationships with peers, opposing counsel, and clients. In fact, many law students and lawyers believe that having the reputation as a “shark” is the best way to represent clients. We need to teach our students that it’s better to be respected than feared or hated, and that they can disagree without being disagreeable. Those of us in the academy should model that behavior more often.

5) We must learn to compromise and recognize that incremental changes are important too- Bader and other corporate idealists often want to change the world but quickly learn that internal and external stakeholders aren’t ready to move that fast. She discussed “nudging” her client toward the right direction. Law school and law-related television shows lead students to believe that the end game is to win and to win big. In the business world, sometimes there are no big wins. Lawyers and business advisors often take two steps forward and one step back, and that’s ok. Students and attorneys who take classes in alternative dispute resolution learn this valuable skill. Bader and other corporate idealists also realized that you have to work with people on the opposite side who feel just as strongly that their position is on the side of the angels. Lawyers who know how to build relationships and refocus their messaging can influence those on the other side if they are willing to listen, and when necessary compromise and accept small victories.

6)   We can compromise but shouldn’t compromise our values- When Bader felt that her work was no longer fulfilling, she looked for other positions that aligned with her world view. With rising student debt and many lawyers living beyond their means, it’s difficult for lawyers to walk away from a job or client that they don’t like. That’s understandable. It’s more problematic to stay in a situation where there is criminal or ethical misconduct without speaking up or leaving because of the financial handcuffs.  It’s also unacceptable to remain in a culture that stifles a lawyer’s ability to raise issues. In some cases, as alleged with some of the GM lawyers, failure to speak up could literally be a matter of life and death.

I enjoyed this quick read because it reminded me so much of my years in corporate life. Bader’s story can teach all of us, even the non corporate-idealists, valuable lessons about coping and thriving in the business world.

 

July 10, 2014 in Business Associations, Books, Corporate Governance, Corporations, Current Affairs, Ethics, Law School, Marcia Narine, Negotiation, Teaching | Permalink | Comments (0)

Friday, June 27, 2014

The Future of Higher Education

Previously, I have written about making MOOCs more effective and online v. in-person classes.  Today, I am writing about MOOCs, online classes in general, and the future of education. This will be a relatively short post because, of course, I don’t know what the future holds. But, after the break, I will take a few guesses based on what we are already seeing.

Continue reading

June 27, 2014 in Business School, Haskell Murray, Law School, Teaching | Permalink | Comments (0)