Friday, September 24, 2021
I'm so excited to present later this morning at the University of Tennessee College of Law Connecting the Threads Conference today at 10:45 EST. Here's the abstract from my presentation. In future posts, I will dive more deeply into some of these issues. These aren't the only ethical traps, of course, but there's only so many things you can talk about in a 45-minute slot.
All lawyers strive to be ethical, but they don’t always know what they don’t know, and this ignorance can lead to ethical lapses or violations. This presentation will discuss ethical pitfalls related to conflicts of interest with individual and organizational clients; investing with clients; dealing with unsophisticated clients and opposing counsel; competence and new technologies; the ever-changing social media landscape; confidentiality; privilege issues for in-house counsel; and cross-border issues. Although any of the topics listed above could constitute an entire CLE session, this program will provide a high-level overview and review of the ethical issues that business lawyers face.
Specifically, this interactive session will discuss issues related to ABA Model Rules 1.5 (fees), 1.6 (confidentiality), 1.7 (conflicts of interest), 1.8 (prohibited transactions with a client), 1.10 (imputed conflicts of interest), 1.13 (organizational clients), 4.3 (dealing with an unrepresented person), 7.1 (communications about a lawyer’s services), 8.3 (reporting professional misconduct); and 8.4 (dishonesty, fraud, deceit).
Discussion topics will include:
- Do lawyers have an ethical duty to take care of their wellbeing? Can a person with a substance use disorder or major mental health issue ethically represent their client? When can and should an impaired lawyer withdraw? When should a lawyer report a colleague?
- What ethical obligations arise when serving on a nonprofit board of directors? Can a board member draft organizational documents or advise the organization? What potential conflicts of interest can occur?
- What level of technology competence does an attorney need? What level of competence do attorneys need to advise on technology or emerging legal issues such as SPACs and cryptocurrencies? Is attending a CLE or law school course enough?
- What duties do lawyers have to educate themselves and advise clients on controversial issues such as business and human rights or ESG? Is every business lawyer now an ESG lawyer?
- What ethical rules apply when an in-house lawyer plays both a legal role and a business role in the same matter or organization? When can a lawyer representing a company provide legal advice to an employee?
- With remote investigations, due diligence, hearings, and mediations here to stay, how have professional duties changed in the virtual world? What guidance can we get from ABA Formal Opinion 498 issued in March 2021? How do you protect confidential information and also supervise others remotely?
- What social media practices run afoul of ethical rules and why? How have things changed with the explosion of lawyers on Instagram and TikTok?
- What can and should a lawyer do when dealing with a businessperson on the other side of the deal who is not represented by counsel or who is represented by unsophisticated counsel?
- When should lawyers barter with or take an equity stake in a client? How does a lawyer properly disclose potential conflicts?
- What are potential gaps in attorney-client privilege protection when dealing with cross-border issues?
If you need some ethics CLE, please join in me and my co-bloggers, who will be discussing their scholarship. In case Joan Heminway's post from yesterday wasn't enough to entice you...
Professor Anderson’s topic is “Insider Trading in Response to Expressive Trading”, based upon his upcoming article for Transactions. He will also address the need for business lawyers to understand the rise in social-media-driven trading (SMD trading) and options available to issuers and their insiders when their stock is targeted by expressive traders.
Professor Baker’s topic is “Paying for Energy Peaks: Learning from Texas' February 2021 Power Crisis.” Professor Baker will provide an overview of the regulation of Texas’ electric power system and the severe outages in February 2021, explaining why Texas is on the forefront of challenges that will grow more prominent as the world transitions to cleaner energy. Next, it explains competing electric power business models and their regulation, including why many had long viewed Texas’ approach as commendable, and why the revealed problems will only grow more pressing. It concludes by suggesting benefits and challenges of these competing approaches and their accompanying regulation.
Professor Heminway’s topic is “Choice of Entity: The Fiscal Sponsorship Alternative to Nonprofit Incorporation.” Professor Heminway will discuss how for many small business projects that qualify for federal income tax treatment under Section 501(a) of the U.S. Internal Revenue Code of 1986, as amended, the time and expense of organizing, qualifying, and maintaining a tax-exempt nonprofit corporation may be daunting (or even prohibitive). Yet there would be advantages to entity formation and federal tax qualification that are not available (or not easily available) to unincorporated business projects. Professor Heminway addresses this conundrum by positing a third option—fiscal sponsorship—and articulating its contextual advantages.
Professor Moll’s topic is “An Empirical Analysis of Shareholder Oppression Disputes.” This panel will discuss how the doctrine of shareholder oppression protects minority shareholders in closely held corporations from the improper exercise of majority control, what factors motivate a court to find oppression liability, and what factors motivate a court to reject an oppression claim. Professor Moll will also examine how “oppression” has evolved from a statutory ground for involuntary dissolution to a statutory ground for a wide variety of relief.
Professor Murray’s topic is “Enforcing Benefit Corporation Reporting.” Professor Murray will begin his discussion by focusing on the increasing number of states that have included express punishments in their benefit corporation statutes for reporting failures. Part I summarizes and compares the statutory provisions adopted by various states regarding benefit reporting enforcement. Part II shares original compliance data for states with enforcement provisions and compares their rates to the states in the previous benefit reporting studies. Finally, Part III discusses the substance of the benefit reports and provides law and governance suggestions for improving social benefit.
All of this and more from the comfort of your own home. Hope to see you on Zoom today and next year in person at the beautiful UT campus.
September 24, 2021 in Colleen Baker, Compliance, Conferences, Contracts, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Ethics, Financial Markets, Haskell Murray, Human Rights, International Business, Joan Heminway, John Anderson, Law Reviews, Law School, Lawyering, Legislation, Litigation, M&A, Management, Marcia Narine Weldon, Nonprofits, Research/Scholarhip, Securities Regulation, Shareholders, Social Enterprise, Teaching, Unincorporated Entities, White Collar Crime | Permalink | Comments (0)
Monday, August 16, 2021
At UT Law, our orientation period for the new academic year began on Friday. I am back in the classroom today teaching a two-session introductory period course on case briefing and legal analysis. Regular classes begin on Wednesday.
The struggle I had in creating my syllabi this year was real. Under current prescriptions and proscriptions, we are teaching in person, with no physical distancing, masked. But masks are not required throughout the building. Moreover, while vaccination is encouraged, it is not required for faculty, staff, or students, and we are prohibited from asking faculty and staff colleagues and students about vaccination status. There have been more student accommodation requests than usual in my large-section course. In general, COVID-19, the political divide, and social (especially racial) unrest--which overlap to create a veritable triple pandemic--are seemingly collectively conspiring against us in so many ways, including in the educational setting. I am feeling the weight of it all.
But undaunted, I move forward in my law teaching! I have addressed some key concerns in my syllabi this semester. I include two sections from my syllabi below that may be of interest. Feel free to dismiss or use these as you will. Most of the substance of the "COVID-19;community heatlh" piece is from language provided to campus faculty by our Provost's office, through our Teaching & Learning Innovation group (part of our Division of Faculty Affairs). The rest comes from CDC (Centers for Disease Control and Prevention) guidance.
COVID-19; community health: The campus administration has advised us that, with the spread of the Delta variant of COVID-19, students, faculty, and staff will be required to wear masks in classrooms, labs, and for indoor academic events required for students such as orientation. This requirement will remain in place until conditions improve and the university communicates new instructions.
The university strongly recommends that all members of the campus community be vaccinated for their own protection, to prevent disruption to the semester, and to prevent the spread of COVID-19. Vaccination information and appointment signups are available at tiny.utk.edu/vaccine. The Student Health Center medical staff is available to students to answer questions or discuss concerns about vaccines, and the center provides vaccines free of charge for anyone 18 years or older who would like one.
If you think you are sick or have been exposed to COVID-19, you should contact the Student Health Center or your preferred health care provider. You can also contact the university’s COVID-19 support team for guidance by filling out the COVID-19 self-isolation form at covidform.utk.edu.
You must not attend class if you have tested positive for COVID-19 and are in the isolation period, if you have COVID-19 symptoms and have not been cleared by a medical provider, or if you are an unvaccinated close contact in the quarantine period.
If you need to miss class for illness, please contact me by telephone at 865-974-3813 or by electronic mail at firstname.lastname@example.org.
Over the course of the semester, you can find more information and updates at utk.edu/coronavirus.
We also are advised that following other simple practices also promotes good health in and outside the classroom. These include:
- maintaining physical distance from others when possible;
- avoiding crowds and poorly ventilated spaces;
- frequent and thorough hand-washing;
- covering coughs and sneezes;
- cleaning and disinfecting high-touch surfaces; and
- monitoring your personal health daily.
More information on observing solid general health practices in the current environment is available here.
I know this is not where we all wanted to be right now in terms of public health risks in our activities together. It remains a lot for us to deal with mentally and emotionally, as well as physically. We remain committed to the safety and health of everyone in our community—a professional education community within a larger university campus. As service professionals, we are counseled in the Preamble to the American Bar Association’s Model Rules of Professional Conduct to “demonstrate respect for the legal system and for those who serve it.” And those of you who consider yourselves to be VFLs (Vols for Life) likely know that the Volunteer Creed—the heart of our campus values—similarly reminds us that we bear the torch in order to give light to others. As aspiring legal professionals and Tennessee Volunteers (a/k/a Law Vols), we therefore commit to caring for one another and for the members of the communities in which we live, work, and learn. It is important that we demonstrate professionalism and the Volunteer spirit by following health requirements and guidance as the same becomes available to us.
Civil, inclusive, professional environment: Our classroom and course website are professional education and work settings within our overall College of Law community. As such, they are places for open, frank, and sometimes difficult conversations and debates. Respect, inclusion, reflection, and tolerance are values inherent to this environment. Each class member is responsible for upholding these values in communications and other conduct. I note also in this regard the campus principles of civility and community, which can be found at http://civility.utk.edu. (I make a cameo appearance in the video on the principles that is found here.) These principles are at the core of what we do.
Please help me in creating a welcoming environment for our class community. If you use a name or pronouns other than what is represented in the course roll or might expect, please email me with your preferred name or pronouns. Also, please offer me help in pronouncing your name correctly—either in advance or through critical feedback if I err.
There obviously is a lot of customization in this language. But I hope that there are a few nuggets in these paragraphs that are useful to some of you. For the sake of completeness, I should note that I am using this text in a master course syllabus and have a separate reading syllabus for each course that only includes the assignments and related instructions.
I wish all well as we begin another semester and year.
Tuesday, July 6, 2021
In 2008, my university (Belmont University) was supposedly the first to offer a social entrepreneurship major. Since then, not only have the schools offering majors in social entrepreneurships grown, but many schools have created centers, institutes, or programs dedicated to the area. Below I try to gather these social enterprise centers in universities. The vast majority are in business schools, some are collaborative across campus, and a few are located in other schools such as law, social work, or design. A few have a specifically religious take on business and social good. Happy to update this list with any centers I missed.
Lewis Institute at Babson https://www.babson.edu/academics/centers-and-institutes/the-lewis-institute/about/#
Christian Collective for Social Innovation at Baylor https://www.baylor.edu/externalaffairs/compassion/index.php?id=976437
Center for Social Innovation at Boston College https://www.bc.edu/content/bc-web/schools/ssw/sites/center-for-social-innovation/about.html
Watt Family Innovation Center at Clemson https://www.clemson.edu/centers-institutes/watt/
Center for the Integration of Faith and Work at Dayton https://udayton.edu/business/experiential_learning/centers/cifw/index.php
CASE i3 at Duke https://sites.duke.edu/casei3/
Social Innovation Collaboratory at Fordham https://www.fordham.edu/info/23746/social_innovation_collaboratory
Social Enterprise & Nonprofit Clinic at Georgetown https://www.law.georgetown.edu/experiential-learning/clinics/social-enterprise-and-nonprofit-clinic/
and Beeck Center for Social Impact and Innovation at Georgetown https://beeckcenter.georgetown.edu
Global Social Entrepreneurship Institute at Indiana https://kelley.iu.edu/faculty-research/centers-institutes/international-business/programs-initiatives/global-social-entrepreneurship-institute.html
Business + Impact at Michigan https://businessimpact.umich.edu
Social Enterprise Institute at Northeastern https://www.northeastern.edu/sei/
Center for Ethics and Religious Values in Business at Notre Dame https://cerv-mendoza.nd.edu
Skoll Centre for Social Entrepreneurship at Oxford https://www.sbs.ox.ac.uk/research/centres-and-initiatives/skoll-centre-social-entrepreneurship
Wharton Social Impact Iniviative at Penn https://socialimpact.wharton.upenn.edu/
and Center for Social Impact Strategy at Penn https://csis.upenn.edu
Faith and Work Initiative at Princeton https://faithandwork.princeton.edu/about-us
Center for Faithful Business at Seattle Pacific https://cfb.spu.edu
Center for Social Innovation at Stanford https://www.gsb.stanford.edu/faculty-research/centers-initiatives/csi
Social Innovation Initiative at Texas https://www.mccombs.utexas.edu/Centers/Social-Innovation-Initiative
Taylor Center for Social Innovation and Design Thinking at Tulane https://taylor.tulane.edu/about/
Social Innovation Cube at UNC https://campusy.unc.edu/cube/
Social Innovation at the Wond’ry at Vanderbilt https://www.vanderbilt.edu/thewondry/programs/social-innovation/
Program for Leadership and Character at Wake Forest: https://leadershipandcharacter.wfu.edu/#
Program on Social Enterprise at Yale https://som.yale.edu/faculty-research/our-centers/program-social-enterprise/programs
Monday, June 28, 2021
Earlier in the year, I had the privilege of being interviewed by Mike Madison at Pitt Law about my work, including my business law and leadership teaching and scholarship. Mike hosts and produces a nifty podcast called The Future Law. The subject matter of his podcasts ranges across a spectrum of law and innovation topics.
Last month, he posted the edited recording of our interview under the title: Joan Heminway, on Corporate Law and Leadership. It is about a half hour in length. Many readers already know me and my work pretty well (but if you want to know more in a quick fashion, feel free to read this campus Faculty Spotlight that was published earlier this spring). However, I thought those of you who teach in law schools might appreciate knowing about (and maybe even listening to) this podcast. Among other things, I walk through UT Law's leadership courses and explain their content and context and talk a bit about the natural overlap between business law and leadership (which I earlier wrote about here).
As Mike notes, we met as fellow presenters earlier this year at Santa Clara Law's symposium on Lawyers, Leadership, and Change: Addressing Challenges and Opportunities in Unprecedented Times. My essay emanating from that presentation will be published by the Santa Clara Law Review later this year. (Some of you may recall that I presented an idea paper on teaching change leadership to law students at the 2021 Association of American Law Schools conference back in January. The Santa Clara Law Review essay is the long-playing version of that idea paper.)
As the Interim Director of UT Law's Institute for Professional Leadership, I am spending part of my summer reviewing and assessing the leadership curriculum at UT Law and connecting with other leadership educators across our campus. I also am working with an amazing rising 3L (my 2021-22 fellow at UT Law's Institute for Professional Leadership) to plan for the coming academic year. He and I are continuing to edit and publish our Leading as Lawyers blog throughout the summer. It is energizing to be working on all of this alongside my business law scholarship this summer--especially in a work environment that is free of emergency planning and lessons on hybrid and online teaching methods and technology, the use of personal protective equipment, and the institution of new public health precautions in our law schools. I hope to accomplish a few things over the course of the next six weeks and have more to write about on this topic as plans and initiatives progress.
Tuesday, June 8, 2021
Recently, I finished two similar books on problems with extreme meritocracy in the United States: The Tyranny of Merit by Harvard philosophy professor Michael Sandel and The Meritocracy Trap by Yale law professor Daniel Markovits. Law schools and entry level legal jobs tend to be intensely meritocratic. The more competitive entry level legal jobs rely very heavily on school rank and student class rank. Once in a private firm, billable hours seem to be the main metric for bonuses and making partner.
Sandel describes at least three problems with meritocracy: (1) people are not competing on an even playing field in the US "meritocracy" (e.g., children of top 1% in income are 77x more likely to attend an Ivy League school than children of bottom 20%); (2) even if there were an even playing field, natural talents that fit community preferences would lead to wild inequality in a pure meritocracy and those natural advantages are not “earned,” (3) a strict meritocracy leads to excessive hubris among the “winners” and shame among the “losers” who believe they deserve their place in society.
Markovits hits a lot of the same notes, but pays more attention to how the elite “exploit themselves” trying to keep themselves and their children in the shrinking upper class. While the $50,000/year competitive preschools Markovits describes are mostly limited to NYC and Silicon Valley now, the expenditures on the education and extracurriculars of children of the wealthy seems to be increasing exponentially everywhere. He also notes the lengthening work hours for the “elite” and the increasing percentage of wealth tied to labor. For example, Markovits points out that the ABA assumed that lawyers would bill 1300 hours a year in 1962 (and 1400 in 1977). As legal readers know, many firms now require 2000+ billable hours a year (which means working 2500+ hours in most cases).
Both Sandel and Markovits do a thorough job explaining the problems of meritocracy, but are fairly brief on proposed solutions. Sandel thinks meritocracy could be made more fair through elite schools eliminating SAT/ACT requirements (that tend to track family income), engaging in more aggressive class-based affirmative action, and using a lottery to admit baseline qualified students. He thinks the last suggestion would reduce the hubris of those admitted to elite schools, and acknowledge an element of luck in their selection. Sandel also suggests more government expenditures on training and retraining programs, as most economically advanced countries spend a much higher percentage of GDP on these programs (0.1% vs. 0.5% to 1.0%). He also suggests using the tax system to reward “productive labor” by, for example, “lower[ing] or even eliminat[ing] payroll taxes and rais[ing] revenue instead by taxing consumption, wealth, and financial transactions.” (218).
Markovits proposes that private schools should lose their tax-exempt status if at least half of their students do not come from the bottom two-thirds of the income distribution. Markovits also suggests promoting more mid-skill production; by, for example, reducing regulation to allow more work to be done by nurse practitioners (rather than doctors) and legal technicians (rather than lawyers.) He suggests uncapping payroll tax (so that the wealthy pay more of their share), introducing wage subsidies for middle class jobs, and raising the minimum wage.
As Ivy League professors, I think they overestimate the role of their schools in shaping the rest of the country, though they may be right about their influence among certain segments of the wealthy. And while their solutions are rather thin, I think they raise issues with meritocracy worth addressing. As Henri Nouwen acknowledged more than 50 years ago in his book Reaching Out, “people are in growing degree exposed to the contagious disease of loneliness in a world in which a competitive individualism [ a/k/a "meritocracy"] tries to reconcile itself with a culture that speaks about togetherness, unity, and community as the ideals to strive for.”
Friday, May 28, 2021
A reminder that Emory’s 2021 conference on transactional law and skills education is next Friday, June 4, 2021. It is virtual and registration is only $50. Register here.
Today, I'm submitting a guest post by Professor Jen Randolph Reise of Mitchell Hamline School of Law. On Friday the 11th, I'll post my reflections from the Emory conference. Jen and I have bonded over our mission to bring practical skills into the classroom. Her remarks are below:
I’m looking forward to hearing from many leaders in transactional legal education, including keynote speakers Joan MacLeod Heminway, Marcia Narine Weldon, and Robert J. Rhee on the theme of “Emerging from the Crisis: Future of Transactional Law and Skills Education.” Marcia will also be talking about her experience launching a transactional program at Miami, joined by three of her adjunct professors.
For my part, I’ll be presenting a Try-This session sharing how I have used exercises that integrate key technological resources and techniques into teaching doctrinal courses. I’ve written in this blog before in praise of practice problems, especially in the asynchronous or flipped classroom. These exercises take that one step farther by creating a self-paced, guided discovery and low-stakes practice of some skills and resources they will need to be transactional lawyers.
Specifically, participants in the Try-This session will be introduced to, and invited to try, three exercises I have created and used in Business Organizations and M&A:
1) a State Filings Exercise, which facilitates student discovery of their state’s business entity statutes and secretary of state filing site (for example, they learn how to form an LLC, and what information on LLCs is publicly accessible);
2) a Public Company Filings Exercise, which guides students through accessing and understanding the structure of public company SEC filings and how to retrieve pertinent information from EDGAR; and
3) a Working with Definitive Agreements Exercise, which introduces M&A students to drafting based on samples and from a term sheet, and requires them to learn to create a redline using Word’s Compare feature.
I’d love to have you attend on Friday and share your experiences and feedback. Or, feel free to contact me at email@example.com or on Twitter @JensJourneyOn anytime for copies or to share ideas. As a transactional in-house lawyer, newly come to the academy, I’m passionate about students getting a foothold in the distinct perspective, skills, and technology they need to become successful transactional lawyers.
Wednesday, March 31, 2021
"Peer assessment score" - the opinion of deans and certain faculty about the overall quality of a law school - accounts for 25% of a school's score in the U.S. News ranking. It is the most heavily weighted item. Bar passage, for comparison, is just a bit over 2%. When told this my pre-law students almost inevitably say --- "why would I care what deans and faculty at other schools think?"
Below are the 25 schools that have the lowest peer assessment relative to overall rank and the 25 schools with the highest peer assessment relative to overall rank. Tier 2 schools are not included because they do not have a specific overall rank. TaxProfBlog provided the data.
I am not unbiased here. I teach in the business school at Belmont University, and our law school has the biggest negative gap between peer assessment and overall rank. There are some reasonable reasons for this gap --- e.g., the school is young (the law school founded in 2011, though the university was founded in 1890) and a lot of deans/faculty may not know that the law school is doing well on incoming student credentials, bar passage, and employment. FIU, the #2 school is also relatively young (founded in 2000). But it seems to me that the fact Belmont University is a Christian school and (former attorney general under George W. Bush) Alberto Gonzales is our dean is doing at least some of this work.
10 out of the 25 biggest gaps are among religious law schools (in bold below). George Mason also likely gets hit for being openly conservative. Granted, this cannot be the only driver of the gaps . Also, there are 6 religious schools among the list of schools that have a high peer assessment relative to rank, so religion doesn't seem disqualifying. That said, there are exactly 0 Protestant schools among the high relative peer assessment score list (and I am not sure any of them are significantly conservative in reputation...so maybe it is the conservative reputation more than the religious reputation doing the work).
Anyway, I'm pretty interested in these gaps. Peer Assessment is supposed to measure overall quality of the school. What part of that "overall quality" is not already captured in the rest of the measures? Faculty research? Faculty Twitter followers? Faculty SEALS/AALS attendees? Moot Court National Championships? Something else? Feel free to leave comments below.
Updated to correct confusion between FIU and Florida Coastal (H/T Matt Bodie); Updated to show San Diego and Seattle are religious.
Low Peer Assessment v. Overall Rank
- Belmont (-43)
- Florida Int'l (-31)
- New Hampshire (-31)
- Wayne State (-30)
- Baylor (-25)
- Drake (-25)
- Texas Tech (-25)
- Cleveland-Marshall (-25)
- BYU (-23)
- George Mason (-23)
- Missouri (Columbia) (-23)
- Penn State-Dickinson (-23)
- St. John's (-23)
- Dayton (-22)
- Duquesne (-22)
- Villanova (-20)
- Samford (-20)
- Pepperdine Caruso (-18)
- Washburn (-18)
- Tulsa (-16)
- South Dakota (-16)
- St. Thomas (MN) (-15)
- Cincinnati (-14)
- Drexel (-14)
- Penn State-University Park (-13)
High Peer Assessment v. Overall Rank
- Santa Clara (+53)
- Howard (+43)
- Seattle (+43)
- Loyola-New Orleans (+37)
- American (+33)
- San Diego (+30)
- Indiana (McKinney) (+28)
- Rutgers (+27)
- Hawaii (+25)
- Denver (+22)
- Georgia State (+22)
- Baltimore (+22)
- Gonzaga (+22)
- Arkansas-Little Rock (+22)
- Tulane (+20)
- Miami (+20)
- Idaho (+20)
- New Mexico (+19)
- Chicago-Kent (+18)
- Brooklyn (+17)
- Maine (+17)
- Memphis (+17)
- UC-Irvine (+16)
- Loyola-L.A. (+16)
- Oregon (+16)
Friday, March 26, 2021
Yesterday, I had the honor of leading a roundtable discussion on women and the practice of business law. The roundtable was part of a series convened by UT Law's Student Council on Diversity and Inclusion, and this specific roundtable was hosted by our Black Law Student Association. Here's the promotional flyer from the event.
In preparing for the session, I had occasion to review two ABA reports from the past few years: Roberta D. Liebenberg & Stephanie A. Scharf, Walking Out The Door : The Facts, Figures, and Future of Experienced Women Lawyers in Private Practice (ABA 2019), and Destiny Peery, Paulette Brown & Eileen Letts, Left Out or Left Behind: The Hurdles, Hassles, and Heartaches of Achieving Long-term Legal Careers for Women of Color (ABA 2020). I was reminded of the fall-off in female lawyers in BigLaw over the course of their careers. Quoting from the first report:
BigLaw is no stranger to the loss of experienced women attorneys. While entering associate classes have been comprised of approximately 45% women for several decades, in the typical large firm, women constitute only 30% of non-equity partners and 20% of equity partners. Women lawyers face many other challenging hurdles as they seek to advance into senior roles: the number of lawyers named as new equity partners at big firms has declined by nearly 30% over the past several years, and firms are increasingly relying on the hiring of lateral partners, over 70% of whom are men.
At the event, I noted this data and the principal reasons why women self-reported that they left practice. These include: care-taking obligations, workplace stress levels, responsibilities for marketing/originating business, billable hour requirements, loss of the desire to practice law, work/life balance dissatisfaction, and concerns about personal or family health.
I also noted specific difficulties faced by women of color. In that regard, I referenced the following quote from a Black female lawyer in her late 40s (included in the second ABA report mentioned above).
Some of the barriers you can’t do [anything] about—like the(mis)perceptions people have in their own minds about your race or your sex or your background. So you start by having to overcome those negative assumptions, stereotypes, and presumptions. And then there’s the ‘black tax’ of having to demonstrate outsized achievements just to get the same opportunities as everyone else. It’s not by accident that at the firms at which I worked, every single black associate had at least two Ivy League degrees. Majority associates? Not so much.
There were no real surprises for me in these two reports. Having said that, I must note that they capture important data and reflections. I recommend that everyone read them.
Of course, only some female law graduates (a relatively small number/percentage) start their careers in business finance or governance. The number/percentage of female lawyers in large business law practices typically does not increase over time; it decreases. Therefore, the number/percentage of women in those practice areas at the partner/shareholder/senior leadership level is relatively small. (By the way, please let me know if you know where I can find some recent reliable data on all this.)
I noted the relatively small percentage of women who enroll in my upper division advanced business law courses (a maximum in any course of 33-1/3%, and that's pretty rare). I asked the student participants for their ideas on why more women do not take these courses or, in general, express a desire to practice business law. Among the responses were the following: not having been exposed to business lawyers or business operations, being intimidated by the subject matter, and being concerned that too much math may be involved. I also asked them how we might work to correct the imbalance in business law and more generally. Students volunteered their observations and ideas. The were thoughtful, reflecting on their own experiences while also working hard to appreciate the circumstances of others. One of the female students pressed her male colleagues to contribute. It was a super discussion. Several students contacted me after the roundtable to follow up on some points.
We only had an hour together, which was barely enough time to begin to scope out these issues. There was certainly more that could have been said had there been more time. I invited students to continue the conversation among themselves and with me and other faculty. I have hope they will do that. I want to ensure that business law knowledge and practice is accessible to all, and I could use their help in accomplishing that goal.
Friday, February 26, 2021
This isn't the post I had planned to write. In fact, I had two other ideas. But I feel compelled to write this, knowing that it may cause more controversy than it's worth.
My colleague Stefan Padfield wrote a post called "The Marxism In Your Diversity Training" that some would call provocative. Others would call it offensive. I had planned to comment on it, but he's taken it down. Did I agree with everything he said? No. Did I disagree with everything he said? Also no.
I have a unique perspective. I'm a Black female. I protested about race and gender issues in college and law school. I've been a management-side employment lawyer for 25 years both as outside counsel and in house. I still consult with companies, deliver training on EEO laws and polices, conduct discrimination investigations, and advise plaintiffs. I work hard to make sure that companies do the right thing. I've posted here before about my skepticism about certain diversity mandates. Not that we don't need MUCH more work in this area, but I'm not sure the approaches that some states and companies are taking will have long-term benefits.
My law school, like all others, is trying to figure out how to deal with race and social justice in the classroom. My conversations with some students and certain faculty members have been painful, draining, and exhausting. Closer to home, I have a 25-year old Black son. He's a gifted artist, has gone to school in Paris, has visited almost 20 countries, and wouldn't hurt a fly, but he's more likely to get stopped, frisked, arrested, or shot by police than his friends because of his skin color and hair style. If I don't hear from in within a 24-hour period, I panic.
So I have lots of thoughts about Stefan's post. Right or wrong, Stefan said what a lot of people that our students will encounter think. We owe it to them and each other to use our analytical skills and face volatile issues.
I've listened to presentations by outside speakers at my law school in the face of protests by some of our students because I believe in teaching and learning through reasoned debate, when possible. But I can't comment on Stefan's post because he took it down in the face of criticism. So I'm sad, but not for the reason that most would think. I'm sad because I think we could have had a thoughtful dialogue on some uncomfortable topics and been an example on how to disagree without being disagreeable. And that's a loss for everyone.
Tuesday, December 1, 2020
A job posting that may be of interest to some of our readers.
BOSTON UNIVERSITY SCHOOL OF LAW, a top-tier law school with an international reputation, is a community of leading legal scholars, teachers, students, and alumni, dedicated to providing one of the finest legal educations in the world. The breadth and depth of our curriculum, especially our clinical program, as well as our innovative spirit are distinctive in American legal education.
Boston University School of Law is seeking to hire a full-time attorney in its Startup Law Clinic (the “Clinic”). The Clinic is part of BU Law’s Entrepreneurship, Intellectual Property, and Cyberlaw Program, which is a unique collaboration between BU Law and the Massachusetts Institute of Technology. The School of Law believes that the cultural and social diversity of our faculty, staff, and students is vitally important to the distinction and excellence of our academic programs. To that end, we are especially eager to hear from applicants who support our institutional commitment to BU as an inclusive, equitable, and diverse community.
The Clinic represents current students at MIT and BU on matters related to a wide range of legal issues faced by early-stage business ventures. The attorney would be expected to help law students counsel clients and represent students in transactional settings. Clients often present questions of law involving for-profit and nonprofit entity formation, allocations of equity, startup financing, employment and independent contractor issues, ownership of intellectual property, privacy policies, terms of service and other third-party contractual relationships, and trademark and copyright matters. Experience representing startup ventures is considered a plus.
The attorney’s primary responsibility will be to supervise and assist students with direct client representation matters. The attorney will also assist the Clinic Director and Assistant Director in preparing and teaching a year-long seminar for students enrolled in the Clinic, including developing materials, performing research, and coordinating classroom activities and guest presentations. The position is a year-round position and the attorney also would work with student fellows hired to continue the work of the clinic during the summer. As time allows, the attorney would also work with the Clinic Director and Assistant Director to develop generalized legal resources and informational material to inform MIT and BU students on the legal aspects of forming and operating for-profit and nonprofit entities.
The ideal candidate is a member of the Massachusetts bar or is eligible for membership via admission by motion, with at least two years of experience advising clients in a transactional setting, and a willingness to support the work of creative and innovative young clients. Teaching experience or a strong interest in developing as a clinical faculty member is also considered a plus. Exceptional writing, editing, organizational, and managerial skills are required.
The attorney will be hired as a Visiting Clinical Assistant Professor to a two-year contract. The ideal start date is May 24, 2021.
Since we opened our doors in 1872, Boston University School of Law has been committed to admitting and building our classes without regard to race, gender, or religion. We are dedicated to building a just, inclusive, and engaged community of faculty and students. We have more work to do to make our environment more just. Boston University School of Law is committed not only to the ideals of faculty diversity and inclusion but also to the work of creating and implementing practices that combat exclusion and inequity by race, gender, gender identity, disability status, religion, or other identities subject to historical subordination. We strive to foster a more inclusive intellectual culture that represents and encourages a broad range of intellectual traditions and approaches to the law. We welcome expressions of interest from applicants of all identities, intellectual traditions, and perspectives.
DO NOT APPLY THROUGH THE BU WEBSITE:
Applicants should send a letter of interest and a resume to Jim Wheaton, Clinical Associate Professor and Director of the Startup Law Clinic. Email applications are encouraged and should be sent to firstname.lastname@example.org. Applications received on or before January 31, 2021 will be given full consideration.
To learn more about the law school, visit our website at www.bu.edu/law, and to learn more about the Clinic, please visit https://sites.bu.edu/startuplaw/. If you have specific questions about the position, contact Jim Wheaton at email@example.com.
We are an equal opportunity employer and all qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability status, protected veteran status, or any other characteristic protected by law. We are a VEVRAA Federal Contractor.
BOSTON, Massachusetts, United States
Monday, October 12, 2020
On Friday night, I finished five days of group oral midterm exam appointments with my Business Associations students. (I wrote a law review article on these group oral midterms five years ago, in case you are interested in background and general information.) It is an exhausting week: twenty-one 90-minute meetings with groups of three students based on a specific set of facts. And this year, of course, the examinations were hosted on Zoom, like everything else. Especially given social distancing, mask-wearing, and the overall hybrid instructional method for the course (about which I wrote here), I admit that I headed into the week a bit concerned about how it all would go . . . .
The examination is conducted as a simulated meeting of lawyers in the same law office--three junior lawyers assisting in preparing a senior colleague for a meeting with a new client. The student teams are graded on their identification and use of the applicable substantive law. I was pleased to find that the teams scored at least as well overall and individually as they typically do. That was a major relief. I had truly wondered whether students would be less well prepared in light of the mixed class format and the general distractions of the pandemic. The students were, however, well prepared. It was clear each student had achieved individual mastery of a good chunk of the course substance. It also was clear that, in preparing for and taking the examination as a group, the students had expanded their base of knowledge. Several teams were so well versed that they were able to point out--in a collegial manner--an error in one of my teaching materials, which I since have corrected.
But what really wowed me were the intangibles. Each team was earnest and focused during the entire examination meeting. I was awed by the dedication and diligence of my students in executing on a group oral examination in this unusual and stressful pandemic. Moreover, team members uniformly treated each other with respect, courtesy, patience, and compassion. In the end, it was one of the best teaching experiences I have had in over twenty years as a law professor. I could not be more grateful for the work that my students put into studying for and carrying through on the examination, and I am highly motivated to work with them to cover the remaining material in the course (more on corporations!) in the weeks to come.
Although I undoubtedly need additional time to reflect on the exams more deeply (and I am committed to undertake that deeper reflection before I share more comprehensive observations at the Association of American Law Schools Annual Meeting in January), I am extremely pleased with the overall results of these virtual group oral examinations in meeting my teaching and learning objectives for the course. Icing on the cake? Two students (on separate examination teams) thanked me for the exam before leaving the examination Zoom meeting, and a third student, in communicating with me on another matter over the weekend, noted in passing: "I actually enjoyed the midterm and thought it worked really well on zoom and was a great format to get to know the material and other students especially with the circumstances this semester!" If the examination format was able to overcome some of the social and mental isolation so many of us have been feeling over the course of the semester, that certainly is a surprise bonus. As we all know, we learn from our students every day . . . .
Oh, and I almost forgot to mention that one team went out of its way to show that its members were "in role" for the examination as a simulation exercise. They created their own custom law firm logo Zoom background (based on the firm name--my name plus that of my intellectual property law colleague, Gary Pulsinelli--set forth at the top of the memo I sent to them that included the facts for use in the examination). It was a hoot! I have included a screenshot below. This definitely put a smile on my face!
Friday, October 9, 2020
How are you doing? I'm exhausted between teaching, grading, consulting, writing, and living through a pandemic. I actually wasn't planning to post today because I post every other Friday, as a way to maintain some balance. I may not post next Friday because I'll be participating in Connecting the Threads, IV, our business law professor blog annual conference. It's virtual and you may get up to 8 CLE credits, including an ethics credit. If you love our posts, you'll get to see us up close and personal, and you won't even need a mask.
I decided to do this short post today because it may help some of you, whether you're professors or practitioners. Several years ago, Haskell Murray wrote that he does a mid-semester survey. He asks his students what they like and don't like. I love this idea ... in theory. How many of us really want to know how we're doing? I've done it a couple of times when I knew that the class was going great, but I don't do it consistently. I decided to do it this year because we are piloting a new program modeled after Emory's Transactional Law Program. I used to teach one or two sections of transactional drafting every semester by myself, but now I do the lecture portion (asynchronously) and six adjuncts teach the skills portion in live classes via Zoom (for now). In some ways, it was easier to teach by myself. Five of the six adjuncts are teaching for the first time, and online at that. It's not easy. I also do pre-recorded videos with questions embedded via Feedback Fruits that students must answer. Each week, I review the answers for each of the classes, look for trends and gaps in knowledge, debrief with the adjuncts, hold office hours with the students, and try to find current events related to what we are doing. I also teach two sections of legal writing to 1Ls. My life is a constant stream of conferences and marking up drafts.
Students tell me they love the transactional drafting class, but what about those who don't say anything? So, I bit the bullet and sent out an anonymous survey to the seventy students enrolled. So far less than 1/3 have responded, but I've already gleaned valuable insight. I sent the survey out two days ago and I've already changed the structure of my videos and am holding a mid-semester review. The students validated my concerns about one of our books. Some students were just glad to be asked. Most important, I won't have to wait until the evaluations at the end of the semester.
Ironically, when I consult with companies on employee relations or corporate culture issues, I recommend that they do a Start, Stop, Continue or Do More, Do Not Change, Do Less exercise with the employees. I've even led focus groups on this, and employees love it because they feel engaged. As long as the company actually commits to making changes as appropriate, it's a powerful tool.
I challenge you to ask your students or your employees how you're doing, especially in these trying times. You may be surprised. If you have other novel recommendation for getting feedback from students or employees, let us know in the comments.
I hope to see you next week at the Connecting the Threads Conference.
Monday, September 21, 2020
Thanks to friend of the BLPB Christina Sautter for sending along the following hiring announcement:
LOUISIANA STATE UNIVERSITY, PAUL M. HEBERT LAW CENTER seeks to hire a tenure-track faculty member in commercial law, including, but not limited to, bankruptcy. Applicants should have a J.D. from an ABA-accredited law school, superior academic credentials and publications or promise of productivity in legal scholarship, as well as a commitment to outstanding teaching.
We additionally seek to hire a full-time faculty member with security of position to direct the Immigration Law Clinic as part of LSU Law’s Experiential Education Program. The Immigration Law Clinic is a fully in-house, one-semester, 5 credit clinic in which students represent non-citizens in their defensive proceedings before the Executive Office of Immigration Review (EOIR) and affirmative applications with U.S. Citizenship and Immigration Services (USCIS) Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, substantial experience in Immigration practice and be admitted and in good standing in a U.S. jurisdiction. Prior clinical teaching experience and fluency in Spanish is preferred. We may consider applications from persons who specialize in other areas as additional needs arise.
We also seek to hire a full-time Assistant Professor of Professional Practice to teach legal analysis and writing. A successful candidate will teach the fundamentals of legal reasoning and writing by way of predictive and objective memoranda in the fall semester and advance those skills by teaching persuasive writing of an appellate brief and appellate oral advocacy in the spring semester. The legal writing faculty collaboratively develop the course materials that are used across the 1L curriculum. Applicants must have a J.D. from an ABA-accredited law school, superior academic credentials, and should have at least two to three years of post-J.D. experience in a position or positions requiring substantial legal writing.
The Paul M. Hebert Law Center of LSU is an Equal Opportunity/Equal Access Employer and is committed to building a culturally diverse faculty. We particularly welcome and encourage applications from female and minority candidates.
Applications should include a letter of application, resume, references, and teaching evaluations (if available) to:
Christina M. Sautter
Chair, Faculty Appointments and Adjuncts Committee
c/o Pam Hancock (or by email to firstname.lastname@example.org)
Paul M. Hebert Law Center
Louisiana State University
1 East Campus Drive
Baton Rouge, Louisiana 70803-0106
Thursday, August 13, 2020
Those of us who study banking law and regulation know it’s an absolutely exciting area! That’s particularly true at the moment. Not only are we watching the path of Lacewell v. Office of the Comptroller of the Currency (OCC), a case about the OCC’s power to grant federal fintech charters to nondepository institutions, currently in the Second Circuit Court of Appeals, but we’ve also been treated to dueling banking law prof amicus curiae briefs (additional amicus briefs were also filed). In this week’s post, I’ll highlight the brief led by Lev Menand, Saule Omarova, Morgan Ricks, Joe Sommer, and Art Wilmarth, and signed by thirty-three banking law scholars (here).
The professors begin by stating their interest: “ensuring that banking agencies stay within their statutory mandates and work in the public interest.” They term the OCC’s proposal to charter nondepository fintech firms “a dangerous power grab premised on the novel claim that banking is just another word for lending.” In a nutshell, the scholars argue that “the OCC does not have the power to charter entities that are not in the deposit – that is, money creation – business.” It’s actually illegal – as the brief notes – for “unregulated entities to receive deposits.” “Bank deposits constitute the bulk of our nation’s money supply, and it is for this reason that banks are subject to strict federal oversight…Creating deposit dollars is a delegated sovereign privilege – an extremely sensitive activity that justifies federal chartering, regulation, and supervision.” The OCC’s very name is linked to the nation’s currency system!
As the brief explains, if the OCC were to be able to grant federal fintech charters to nondepository institutions, this would result in a significant expansion of its regulatory authority. It would also impact the governance of the Federal Reserve, and expand access to Fed master accounts and discount window lending. Additionally, as banks are exempt from the coverage of the federal securities laws and investment company laws, it would impact the coverage of these laws, and it would even create “an alternative, OCC-controlled system of business organization available to a huge range of companies.”
Indeed, the answer to what might seem to be a technical banking law question of interest to few (and perhaps boring to most) will have tremendous ramifications. The professors do an excellent job of explaining the implications of the OCC having the authority to grant federal fintech charters, and I encourage BLPB readers to review their brief.
Stay tuned for Part II, next Wednesday!! I’ll be highlighting Professor David Zaring’s Amicus Curiae Brief supporting the OCC’s position.
Sunday, August 2, 2020
Greetings from SEALS (virtually). I've just finished sitting in on the last of several excellent panels on online teaching. Below are tips from the panelists, some of my own lessons learned, and key takeaways from the excellent book Small Teaching Online. For more of the foundations of online teaching see Part I, Part II, Part III, and Part IV.
- Have a class zero- you and students can record an introduction of themselves, pets, hobbies, skills, talents etc. Make sure you’re smiling and conveying your excitement in the video about the class.
- You can also have a class zero where you spend 5 minutes on Zoom with each student before the first day of class talking to them about any questions they have about the class, their tech etc.
- Let students know that this online format is not just a pandemic issue. Virtual offices are increasingly common in practice.
- Think about how to motivate students- what counts as a grade? Should you raise the class participation component and if so, how will you measure it? Will watching videos before class and participating in discussion boards count?
- Stand when recording your video lectures or teaching synchronously. Students prefer it. You can get a standing desk or go old school like me and use a pile of textbooks to create a lectern.
- Think about creating mnemonic devices through your intentional use of imagery. Use images appropriately so that the students can connect the image with what you want them to remember.
- Allow the students to do more prep before class. Let them find the rule and the law and use a problem method during synchronous sessions where the students work on hypotheticals.
- Make sure that you explain the learning objectives each week or each module so the students know what they are doing, why, and where it fits in the course. You can even add how the module or unit will help them in practice.
- You can get information to students with an announcement or email, but consider using a short video, especially if you want to explain an assignment and add more nuance. Make sure to add your personality in to the video. You can also use video to explain information that students find confusing. This way you can avoid answering the same questions over and over again.
- Use the subtitle or caption feature for your powerpoints when you are recording your asynchronous lecture.
- Consider having a transcript of your lecture videos or a detailed outline, especially if you don’t have subtitles or captions in your videos. I don’t write out an outline for my classes, but if you do, you can post that outline.
- Have some questions for the students to think about while they watch the asynchronous video lecture. I will use Feedback Fruits so students will answer questions while they watch the videos and won’t be able to continue watching until they answer the questions. You could be more low tech and provide them with the question in advance and require them to answer the questions before class in a no or low-stakes quiz.
- Students seem to prefer short, informal videos to highly produced videos. Students respond better to conversational tones and unedited videos. Of course, don’t just read the slides.
- Try to avoid talking about dates or current events in your videos, unless it’s really relevant. Make sure the videos can stand alone as an independent product and don’t refer back to other videos.
- Disclose your grading rubric early or have students develop a rubric based on what you have communicated. This will help you know whether they understand your materials and your grading standards.
- Learn from neuroscience- do ungraded short quizzes and spaced repetition before and after class. For a business associations class, for example, you can use old bar questions each week, which will get them familiar with those type of questions.
- Use some of what works in K-12 teaching about how to keep students engaged, where they empower the students to learn. We focus more on how we perform as teachers vs. how students learn. If you watch YouTube videos of K-12 teachers, you can learn a lot that will also apply to law students.
- Use non-graded events throughout the semester such as short essays or multiple choice so that they can see how they are doing. Do this anonymously and provide the answers or model answers.
- If your class is small enough, greet students by name when they come in the Zoom room.
- Start each synchronous class with a question in the chat- it can relate to the materials, something in the news, or pop culture etc. If you normally arrive early to the physical classroom, do the same on Zoom and recreate that casual conversation.
- Make sure to save the chat in Zoom so that you can refer to issues in the next class or you can send out an email or announcement to discuss what you may have missed in the class.
- If you have a TA, that person can monitor the chat for you while you're teaching.
- In the first week, think of creating an exercise that relates to what the students may do for the final exam. This may include multiples choice, a short essay etc.
- Have panels of students on call for certain parts of the class, just as you would in residential classes.
- Try peer-to-peer formative assessment through peer review and team-based learning. This will work better in an online than a residential setting. See my earlier posts for more information on TBL.
- Take a break in class if it’s more than an hour. Tell the students that they can use that time to take notes, talk with each other etc.
- Add humor to the course. Consider a contest for best virtual background but be mindful that some students may not have the bandwidth for this. If all of your students can do it, consider a “prize” for the best background.
- When you use breakout rooms, have a class document that students can fill out or download and then share the screen during the breakout rooms. While they can use a whiteboard in breakout groups, they can’t share their breakout room whiteboard in the main room. You can share using Google docs in Zoom. This may work better if students need to report back to the class.
- In class, reboot student attention with thumbs up, thumbs down, polls etc. Try to keep things moving every 10-15 minutes.
- Have students do a short reflection at the end of a unit to discuss what they learned or struggled with. Give them the choice of using video or written format.
- If your LMS allows it, have a conditional release system so students cant’t see certain content until they have reached a certain score or milestone with the materials.
- Use the discussion board feature for students to answer questions and then make sure that you answer within 24 hours.
- If you choose to use discussion board for substantive student submissions, make sure that you have a clear rubric, with word count requirements etc. Consider having students have a choice of questions to answer. You may decide that if a response does not meet the rubric, the student gets 0 points, so it’s all or nothing. You can also require students to post before they see other posts. If you have a very large class, you can divide them into groups so the students are only looking at a smaller group of posts.
- Think about providing feedback on assignments via audio or video, if your class is small enough. Many students find that this provides more of a connection to the professor.
- Early or midway through the semester, use Google forms, survey monkey, or another mechanisms for students to let you know anonymously what's working and what’s not. Ask them what you should start, stop, and continue doing.
- Send personal emails when a student misses class. Just asking if the student is ok and making sure s/he knows where to find the class recording, can further the sense of community and connection.
- At the end of the semester, have the students assess themselves. They can also discuss three takeaways from the course and how they plan to use it in practice.
Best of luck planning for the new semester. Stay safe!
Friday, July 17, 2020
This coming week, the Association of American Law Schools will host its seventh week of special summer webinars geared to providing assistance to under-supported law faculty in our current unusual circumstances. The series, dubbed "Faculty Focus," is described in the following way on the program website (which also includes information about upcoming programs):
COVID-19 has affected the normal rhythms of the legal academy in ways that may be particularly disruptive for early-career faculty.
AALS invites tenure-track, clinical, and legal writing faculty to join us on Tuesday afternoons for “Faculty Focus,” a series of weekly webinars organized around issues these individuals may be facing as well as challenges affecting higher education and the profession in general.
Each 60-minute webinar will feature expert advice from law school leaders followed by shared experiences from early career law faculty. The sessions will be structured to encourage conversation and connection, with opportunities for participants to crowdsource solutions and discuss common issues across schools and teaching areas.
Although I am not in the target audience, I have enjoyed several of these programs. Here is a list of the programs held to date:
Week 1: Work-Life Balance and the Demands of Scholarship
Tuesday, June 9, 2020
Week 2: Meeting the Needs of All Students Online
Tuesday, June 16, 2020
Week 3: Excellence in Online Instruction
Tuesday, June 23, 2020
Week 4: Racism, Justice, and Your Fall Classes
Tuesday, June 30, 2020
Week 5: A Perspective from the Dean’s Offices
Tuesday, July 7, 2020
Week 6: Effective Use of Research Assistants
Tuesday, July 14, 2020
Week 6: How to Become an Excellent Teacher While Starting Your Career in a Pandemic
Thursday, July 16, 2020
I was honored to be asked to participate in the panel discussion, convened last Tuesday, on Effective Use of Research Assistants. The recording for that session and the other past programs is available here. This coming week, the session focuses on What Every Faculty Member Should be Doing This Summer. You can register for it here.
Wednesday, July 15, 2020
In a past post (here), I mentioned stumbling (thankfully!!) into teaching in the area of Negotiation and Dispute Resolution while a PhD student focused on financial regulation. For so many reasons, the opportunity to pursue doctoral studies in the Ethics & Legal Studies Program at the Wharton Business School was truly a great blessing! So, I’m delighted to share with BLPB readers that applications for the Program’s incoming class of 2021 are now being accepted. If you – or someone you know – might be interested in learning more, an quick overview is provided below and an informational flyer here: Download Ethics&LegalStudiesDoctoralProgram
The Ethics & Legal Studies Doctoral Program at Wharton focuses on the study of ethics and law in business. It is designed to prepare graduates for tenure-track careers in university teaching and research at leading business schools, and law schools.
Our curriculum crosses many disciplinary boundaries. Students take a core set of courses in the area of ethics and law in business, along with courses in an additional disciplinary concentration such as law, management, philosophy/ethical theory, finance, marketing, or accounting. Students can take courses in other Penn departments and can pursue joint degrees. Additionally, our program offers flexibility in course offerings and research topics. This reflects the interdisciplinary nature of our Department and the diversity of our doctoral student backgrounds.
Faculty and student intellectual interests include a range of topics such as:
- legal theory • normative political theory • ethical theory • firm theory • law and economics • private law theory • penal theory • constitutional law • bankruptcy • corporate governance • corporate law • financial regulation • administrative law • empirical legal studies • blockchain and law • antitrust law • fraud and deception • environmental law and policy • corporate criminal law • corporate moral agency • corruption • behavioral ethics • negotiations.
Monday, July 13, 2020
As law school classes move online, it is imperative that law faculty understand not only how to teach online, but how to teach well online. This article therefore is designed to help law faculty do their best teaching online. It walks faculty through key choices they must make when designing online courses, and concrete ways that they can prepare themselves and their students to succeed. The article explains why live online teaching should be the default option for most faculty, but also shows how faculty can enhance student learning by incorporating asynchronous lessons into their online classes. It then shows how faculty can set up their virtual teaching space and employ diverse teaching techniques to foster an engaging and rigorous online learning environment. The article concludes by discussing how the move to online education in response to COVID-19 could improve the overall quality of law school teaching.
Saturday, July 11, 2020
Greetings from Miami, Florida, COVID19 hotspot. Yesterday, 33% of those tested had a positive result. Although my university still plans to have some residential instruction as of the time of this writing, most of us are preparing to go fully online at some point. In Part I, Part II, and Part III, I provided perspectives from experts in learning. I'm still gathering that information.
This week, however, I spoke to the real experts -- students. Yesterday, I had the opportunity to hear from students studying business and human rights from all over the world courtesy of the Teaching Business and Human Rights Forum. I've also been talking to research assistants and other current and former students. Here's a summary of their conclusions:
- We know that Spring was hard for everyone and that everyone is still learning how to teach online. Do not be worried about making mistakes.
- Don't assume that we are all digital natives. Some of us are older students or not used to the technology that you have decided to use. Make sure that the interface is intuitive and use tech in fun and interesting ways. (One professor used Jeopardy online and students loved it).
- Be flexible with assignments. Many of us are dealing with health and financial issues and we will need extensions. Some students will be in different time zones if you're requiring group work. It's not business as usual.
- If you have teaching assistants, have them monitor the chat functions if you use it and have them pop into breakout rooms (if you're using Zoom). TAs can be very helpful, especially in large classes.
- Add a COVID component to the lessons if you can. It helps us make sense of things and provides real-world context to what we are doing.
- Offer breaks. Time moves much slower in an online class.
- Use guest speakers who wouldn't be able to visit class. It makes class more interesting and allows us to hear from thought leaders from around the world.
- Consider using Slack or other tools other than for communications and group work.
- Use screen sharing during synchronous classes and allow others to share when appropriate.
- Make use of the chat function during synchronous classes. It keeps our attention and makes sure that we are engaged.
- Do not just talk over powerpoint slides. Many students simply download the slides if they found that professors were reading the slides word for word without adding new content.
- Make sure the slides have enough information to be useful. Some professors put only a few words on a slide and this doesn't facilitate learning.
- Use breakout rooms often and appoint a reporter to inform the class of the room's conclusions. Make sure that everyone understand the assignment before sending students off to breakout rooms.
- Breakout rooms help build community and encourage shy students to speak more.
- Communicate rubrics for assignments clearly and often. Let us know exactly what you expect us to learn in each module. Make the objectives clear.
- Try to forecast what you're going to teach and do a summary at the end of the lesson, if possible.
- Require us to keep our cameras on. We will pay more attention.
- Keep us engaged with polls, quizzes, and surveys.
- Post slides in advance if you can for synchronous classes so that we can take better notes or annotate them.
- Consider a WhatsApp group or other communication mechanism to share newspaper articles or current events. Make it optional for students to participate.
- Consider having the class watch a movie in class instead of on our own. It helped build community.
- Please do not do a 6 hour lecture over powerpoint.
- Make sure to use powerpoint. Even a short lecture is hard to watch if it's just the professor sitting there.
- Pay special attention to your foreign students, who may be living in a different reality. Consider having small group office hours for them.
- Depending on the time of the day, invite students to have a coffee hour via Zoom.
- Make sure to have virtual office hours. Students will need to feel a connection outside of class. Also consider coming to class early and opening the Zoom (or other room) early and staying after class as you would in person.
- Videos should not be longer than 10 minutes.
- The length of the video matters less if the professor is engaging. Some of the most engaging professors in person look dead on camera. Their lack of enthusiasm for teaching online comes through.
- It's nice to have good looking slides, but if the professor isn't enthusiastic, it doesn't matter how good the slides look.
- Use whiteboards, graphs, or diagrams if possible if you're explaining complex topics. This is really important for visual learners. If you used to use the board in person, try to find a way to do it online.
- Group projects are ok as long as there is built in accountability. We are ok working with others but it's harder online and worse if everyone gets the same grade and there is no penalty for students who don't do any work.
- Show videos within videos for asynchronous and synchronous classes. You can stop the video in class and ask questions, just as you would if we were in person.
- Make sure to stop for questions regularly. Remember there's a lag when people unmute or as you look to see who is raising a hand.
- Ask for our feedback. We all want to make online learning work.
Next week, I will add more from the teaching experts. Everyone stay safe and healthy.
Friday, June 26, 2020
Last week, I wrote the first in a series of posts with tips for teaching online. I expect many more law schools to join Harvard and now UC Berkeley by doing all Fall classes online. I’m already teaching online this summer and will teach online in the fall. Our students deserve the best, so I’m spending my summer on webinars from my home institution and others learning best practices in course design.
Here are some tips that I learned this week from our distance learning experts. First, I need to adopt backward design. I have to identify the learning objectives for my courses, then decide how I will assess whether or not students successfully met the learning objective. Effective learning objectives are active, measurable, and focus on different levels of learning (e.g., remembering, understanding, applying, analyzing, evaluating, creating). Some people find Bloom's Taxonomy of Educational Objectives helpful.
Once I figure out my learning objectives, I will work backwards to determine what kinds of activities the students will work on either online or face to face (which for me will be Zoom). For more on this topic, see this guide to backward design from Vanderbilt University Center for Teaching. By the way, if you’re wondering why I’m not just saying click here, it’s because descriptive text is better for accessibility.
Then I will figure out the technology, which is important, but shouldn’t drive how or what I teach. Although we think our students are tech savvy, we still need to keep it simple and intuitive. We have to think about how to engage the students and facilitate learning without taking up too much bandwidth.
Finally, I need to ask myself some hard questions.
What do you want students to know when they have finished taking your blended course? What are the intended learning outcomes of the course?
- This actually takes some thought. We all have our mandated ABA learning objectives but what do they really mean, especially in today’s environment? How do I make sure that the learning objectives are pedagogically sound? What do students need to learn to be practical, strategic lawyers? What kinds of people, process, and tech skills do they need for the “new normal” when it comes to delivery of legal services? Yes, I want my students to know how to communicate more effectively to clients, counsel, and judges in my legal writing course. I want my students to know how to draft, edit, and negotiate contracts in my upper level skills courses. I want my compliance students to understand the law and the soft skills. But what other skills matter now? How will I communicate those over Zoom?
As you think about these outcomes, which would be better achieved in the online environment and which would be best achieved face-to-face in class?
- How much harder will it be to teach people skills and impart complex concepts online? I don’t have the option for face-to-face classes in the Fall and many of you won’t either, sorry to say. In the Fall, I will have one online asynchronous course and another hybrid. It will be all online but I will record some lectures and use the synchronous time for simulations, peer review, and discussions. I’m trying to determine how to make the synchronous time as engaging as possible – even more engaging than I would if I was standing in front of the room. I will have to compete with barking dogs, the comforts of a couch, and other electronic distractions that I would not have in an in-person environment. I’ll post more about keeping students engaged online in a subsequent post.
Blended teaching is not just a matter of transferring a portion of your existing course to the online environment. What types of learning activities do you think you will be using for the online portion of your course? For the face-to-face part of the course?
- Each week, I plan to use discussion boards and no-stakes short quizzes to ensure understanding for the asynchronous portions of my courses. My pre-recorded videos will be no longer than fifteen minutes, and ideally seven minutes or less. As stated above, for the synchronous Zoom sessions, I will use polls, breakout rooms, and panels of students. Because I will have a flipped classroom, the students will have learned the concepts so that we can apply them in class. As for class discussions, I have found that I sometimes have a more intimate connection with students in a class of fewer than 25 on Zoom than I did in the classroom, but large classes are much tougher. Professors appear to have mixed views on using the Socratic method on Zoom. Since my face-to-face classes are on Zoom, I require cameras on so that I can see their faces, unless they have permission in advance from me or temporary bandwidth issues.
Blended courses provide new opportunities for asynchronous online discussions. How will you use asynchronous discussions as part of the course learning activities? What challenges do you anticipate in using online discussions? How would you address these?
- I have used pre-class discussion boards and have required students to reply on two other submissions. These count for class participation so students can’t just write “great comment.” I have also experimented with post-class discussion board submissions. They key is to follow up and comment myself so that students don’t feel like they’re in a black hole. I also plan to have one or two students per week post a current event to the discussion board that relates to what we are doing in class. During class time, I will ask another student to discuss or summarize the current event.
How will the face-to-face, online and other “out of class” learning activities be integrated into a single course? In other words, how will all the course activities feed back into and support the other? How will you make the connections between the activities explicit to students?
- This will be tough and this is why I will spend weeks this summer planning. I need to make it clear what the students need to read, watch, and do pre-class, in-class, and post-class. Teaching online takes much more pre-work than most people realize. But this planning is critical to ensuring that the students have a seamless course experience.
When working online, students frequently have problems scheduling their work and managing their time. What do you plan to do to help your students address these issues and understand their own role and responsibility for learning in the course?
- Students really need structure, and even though they don’t like to admit it, they prefer it. Online learning means that students must have more discipline than they are used to. I plan to recommend a workload course estimator so that students can plan appropriately. I will also have to cut back on the work I give because economic and health issues will continue to plague my students during the pandemic. Our university and others have rolled out tools for students to manage their time, and more important, manage their stress. I also plan to do frequent check-ins and increase office hours.
Students can have challenges with using new instructional technologies to support their learning. What specific technologies will you use for the online and face-to-face portions of your course? What proactive steps can you take to assist students to become familiar with your course website and those instructional technologies? If students need help with technology later in the course, how will you provide support?
- As I mentioned in the last post, it’s best for all professors to use the same platforms for the learning management system. You can add bells and whistles for team communication or polling later. As for helping students get familiar with the website, our university has instructional designers and lots of webinars, but I plan to test drive my eventual set up with my research assistants over the summer and ask them to be brutally honest. Fortunately, we have several online resources for students as well.
There is a tendency for faculty to require students to do more work in a blended course than they normally would complete in a traditional face-to-face course. What are you going to do to ensure that you have not created a course and one-half? How will you evaluate the student workload (and your own) as compared to a traditional class?
- This is my biggest concern. I spend many more hours prepping my online courses than my traditional courses, and I haven’t even been doing anything particularly sophisticated. Now that I’m learning more tools and techniques, I anticipate that I will be spending more time prepping. In my zeal to make sure the students have a great experience and learn as much or more than in the traditional classroom, I will likely give them more work as well, if I’m not careful. The key is to use the findings from learning science to find a balance.
In my next post, I’ll talk about what I’m learning about how students learn. In case you can’t wait to see what I write, check out Learning How to Learn, Small Teaching Online, and Online Learning and the Future of Legal Education. If you have suggestions or comments, please leave them below so we can all learn from each other.
 Our instructional designers attributed these questions to the University of Wisconsin, Milwaukee.