Monday, February 27, 2023

Teaching Question of the Day

I teach business law courses that involve planning and drafting in connection with business transactions. I know many of you do, too.  My question is, how do you teach your students to find drafting precedents (if that is part of your teaching) for transactional business law projects/tasks?  Do you advise students to use forms or to walk back provisions in fully negotiated agreements?

In our capstone 3L planning and drafting course at UT Law, Representing Enterprises, I let students take their own path in finding drafting precedents and ask them to report out their process to the class.   We talk through the pros and cons of their individual approaches, which I capture on the whiteboard.  My board notes from a recent class (during which we talked through how students located precedent bylaws for a closely held--preferably Tennessee--corporation) are included below.

 

RE(LocatingBylaws2023)

Although Bloomberg Law was a popular resource for students who shared their process in this particular class meeting, the Securities and Exchange Commission's website and Google also got some love.  In the ensuing discussions, a student also mentioned Westlaw's Practical Law as a resource, although that's not reflected in this picture.

In other advanced business law planning/drafting courses, I invite representatives from Bloomberg Law, Lexis, and Westlaw into my classroom to train my students in how to find precedent documents (and other transactional resources) using their database's search tools.  One student involved in the discussion reflected in the photo above was enrolled in one of those advanced courses with me in the fall (and also had been a student in our transactional business law clinic).  He was among the folks who started his search process with Bloomberg Law.  His classmates told me he had been teaching them some of what he had learned in my course and the law clinic!  #peerteaching--loved it!

How do you help students find drafting precedents (and in what business law and legal education contexts)?  I am always willing to learn new methods and tricks.

https://lawprofessors.typepad.com/business_law/2023/02/teaching-question-of-the-day.html

Joan Heminway, Law School, Teaching | Permalink

Comments

Interesting. I wouldn't think bylaws would be a significantly negotiated document where you'd see distinct drafts, as say in a buyer or seller oriented acquisition agreement. On the other hand, the shareholder agreement containing management responsibilities or exit provisions might differ, say, as between active and passive, young and old, etc.

When I taught the entrepreneurship capstone, the main drafting exercise was the term sheet, and I posted three or four random samples on Blackboard, but they were free to do their own research. In that context, nearly every draft starts with the VC and is would be VC oriented (just as every bank loan document starts with the bank).

If you are talking acquisitions (and the books are sitting on the shelf in my office and we're having a snow day), I recall that Jack Levin's (then of Kirkland & Ellis) massive treatise on the how-to of mergers and acquisitions contained both buyer and seller oriented forms, and annotated each of them. This appears to be the current version of that: https://law-store.wolterskluwer.com/s/product/mergers-acquisitions-buyouts-internet-3r/01tG000000BqWefIAF?gclid=Cj0KCQiA6fafBhC1ARIsAIJjL8nEt0EYws9Yca4IVPfA2i_ECO0rqXbssV_5ZHroGVA8svn7ozrXhrwaAs46EALw_wcB

Posted by: Jeff Lipshaw | Feb 28, 2023 6:35:16 AM

Great thoughts, Jeff. The learning objectives for the student and the faculty member's teaching objectives all play a role in all of this, including what we ask our students to draft and where/how we direct them as to resources.

I ask students to draft bylaws for a number of reasons. I find that few students understand the concept of bylaws (or even that they are statutorily required for the due organization of a corporation). I first ask the students to identify both the core Tennessee Business Act provisions relating to the content of bylaws. Then, I effectively ask them to find all of the provisions in the Tennessee Business Corporation Act that reference bylaws. It' a huge number, since Tennessee, as an MBCA state, allows for many default rules to be varied by bylaws.

Also, for closely held corporations, things like stock transfer restrictions (buy/sell, tag/drag, etc.), voting agreements, shareholder agreements, etc. can all be done within the bylaws. This discovery allows for us to talk about when one should choose to draft separate agreements and when one should draft these kinds of provisions into organic documents (and which document--charter or bylaws).

Posted by: joanheminway | Feb 28, 2023 12:22:32 PM

Oh, and thanks for the reference to Jack Levin's M&A treatise and that url. I came up with a slightly shorter url for that: https://law-store.wolterskluwer.com/s/product/mergers-acquisitions-buyouts-5-volumes-122022/01t4R00000Ojr9CQAR. An Internet-based version also is available: https://law-store.wolterskluwer.com/s/product/mergers-acquisitions-buyouts-internet-3r/01tG000000BqWefIAF.

Posted by: joanheminway | Feb 28, 2023 12:28:59 PM

As a practitioner, I lecture on M&A and rely on the ABA Model SPA and Model APA as well as Practical Law. The commentary is invaluable because it explains the purpose of each provision and variations of the same.

Posted by: Gianfranco A. Pietrafesa | Mar 1, 2023 2:46:46 AM

Gianfranco, yes! I also use these when I teach M&A or work with a student on an expository paper in the M&A space. Thanks for mentioning these resources. Totally invaluable.

I actually cite to them in Tennessee forms of annotated M&A agreements I have coauthored with other Tennessee practitioners. You can find them all on my SSRN author page (https://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=353099) or by searching the archives of our business law journal at https://ir.law.utk.edu/transactions/, if you are curious.

Posted by: joanheminway | Mar 1, 2023 8:31:08 AM

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