Tuesday, June 9, 2009
Posted by Jeff Lipshaw
The AALS asked me to give the "junior faculty" perspective on a panel here in Long Beach assessing the state of the basic business associations course. As I noted, it's a strange "junior-ness" as I'm going to be attending my 30th law school reunion in the fall. Of those thirty years, twenty-six were as litigator and deal lawyer, in-house and outside lawyer, soldier, general, and diplomat, so I've seen a lot of different perspectives. My co-author, Larry Ribstein, moderated, and Usha Rodriques has done yeoman's duty in summarizing the rest of the panel; here's a snapshot of what I had to say (for what it's worth).
Two major differences between the way practicing lawyers and academic lawyers think about business association law have to do with how it's organized (as a practical matter) and how it's conceived (as a theoretical matter).
As to organization, business law isn't practiced by doctrinal area, but it tends classically to be taught that way. Issues arise in context; clients rarely come in and say "I have an issue in agency that needs work." It's teaching the context the doctrinal silos impact that is the real challenge.
To give a sense of the cluelessness most students entering the basic BA course feel (as I did thirty-two years ago with my freshly-minted history degree), I asked the audience to consider the game of Flog, as to which substantial legal doctrine had developed. The course is Flog Law. Aspects of the game techniques as to which doctrine has developed include equipment and techniques or "moves" such as the long hurl, the short hurl, and the "roll." All teaching is done by means of discussing what the other player's rights are if you wrongly perform the act to which the doctrine applies. For example, if a player incorrectly performs the long hurl, he or she is penalized two dribbets. The student is not taught explicitly, and must figure out on his or her own what it means to win the game of Flog. The obvious conclusion from this method of teaching has to be that winners in Flog are those who catch the most mistakes made by the other player. So you finish the Flog Law class, graduate, go out into the world and advise Flog players, who immediately get mad at you because it turns out Flog players have a completely different objective: using the few strokes to get the ball in the hole (spell Flog backwards).
Compare this to teaching the litigation game. I graduated in 1979 with civ pro, federal jurisdiction, evidence, and a clinical trial practice course, and I pretty much understood what I was going to be doing as a litigator for the next ten years. You know what it means to succeed. Teaching the business law game, it seems to me, means first giving students some idea of what it means to succeed. We would accomplish that far better if we substituted for the stroll through doctrinal categories a functional approach: how concerns about liability to third parties, management of the enterprise (rights and duties of owners and managers), finance and taxes, and ownership and transfer, all generally the domain of lawyers, fit into the business game.
As to the conception of business law and lawyering, I noted that the data of the world doesn't just organize itself; there is a relationship between the observer and the observed in which the observer brings something to the party. The predominant approach within the academy is to be, as Ronald Gilson observed, entomologists studying the beetles, and Usha had it right: entomologists telling the beetles how to BE beetles. It means academic conceptions of the law and its role are retrospective, objective, litigious, and analytical, while the practice conceptions of transactional law are forward-looking, subjective, transactional, and strategic/tactical. Moreover, what academic business law usually leaves out is the integration of doctrine, and the law itself, into the business (or Flog) game, which means dealing with (a) the exercise of good judgment, and (b) the limits of the law as means to the ends of the game.
Finally, I should note that I met face-to-face Charles Whitehead, the beetle-turned-entomologist to whom Ronald Gilson was actually referring!