Tuesday, March 17, 2020
Like all of us, the past few weeks have been hard. The past few days, harder. Still, I am fortunate that my challenges are nothing compared to so many. My family and I are healthy so far; my job is challenging, but not currently threatened; and the people I love are, generally, safe. I am truly fortunate.
Complaining about courts messing up LLCs is not at the top of my mind right now, even though it remains both satisfying and important to me. Today, all I have are some thoughts. That all I’ve got, and it will have to be good enough.
So, here are some things I think:
- It was right to cancel March Madness, and it still makes me sad.
- Other than being a father and a spouse, I have the most important job I have ever had.
- I love our students. Every day.
- My family is the best and far more than I deserve.
- Women are widely over scrutinized, over worked, and underappreciated.
- I am proud to be a lawyer.
- Lawyers lawyering everything is exhausting, and too often, wrong (i.e., bad lawyering)
- I hate racism, and I need to work harder to be anti-racist.
- Babies are the best.
- Sometimes, it is better to be happy than to be right.
- I’m proud to be Irish.
- Law school rankings suck.
- Online teaching and learning is more work than a lot of people think.
- We all need to give each other a break.
- We can have high expectations and still be compassionate and forgiving.
I think a lot more things, but it’s time to pay attention to my family. There is no question I am the weak link in this group, and they deserve more. I guess that’s one more thing I think. Be well, friends.
Friday, March 13, 2020
So glad Colleen published the Skadden information in her post earlier today. I had considered doing that, too. Instead, I will add two links to the growing knowledge base. They both relate to teaching during these challenging times. Then, I will offer a few thoughts of my own.
First, friend-of-the-BLPB Seth Oranburg alerted me to some distance education tips he has posted. They can be found here. I appreciate him taking time to write his ideas out and get this essay posted.
Second, Josh Blackman posted tips on teaching using Zoom here. Some of us are more familiar with videoconferencing technology than others. I have not taught more than a few classes online, but I am comfortable with Zoom. A few of Josh's ideas were new to me and seem very useful in the emergent online teaching environment.
Since most law students will be taking all of their courses (as well as conducting meetings and continuing to do much or all of their reading and written work) online, the possibility of boredom and internet overload/online burnout is very real. As someone who recently suffered from digital eye strain (a/k/a computer vision syndrome), I also am concerned about the possibility that some students will have to combat that. It will be more important than ever that we take time away from our electronic devices to ensure good physical, psychological, and emotional health.
Nevertheless, I am toying with continuing to teach my Wednesday law school yoga class online (students already have asked about it) while UT Law is closed to students, since maybe just hearing my voice and doing yoga together could be helpful and healing. (And at least they would not have to check their phones or computers visually unless they had a question about a pose!) Not sure about that yet . . . .
I expect to write more about this. And maybe some of my co-bloggers will do the same. Comments are always appreciated, too. Let's all support each other in the brave new teaching world so many of us are facing.
Monday, January 20, 2020
[Image courtesy of Clipart Library, http://clipart-library.com/mlk-cliparts.html]
Today, on Martin Luther King Jr. Day, I was in the office preparing for the week+ ahead. I was not the only one there. Part of me wanted to be elsewhere, publicly supporting the life and legacy of Dr. Martin Luther King Jr. I did think about him and his work as I toiled away.
Although most of what I was sorting and sifting through today was business law-related, part of what I focused on was committee work for our celebration tomorrow that honors Dr. King. I chair a committee at UT Law this year that is responsible for hosting one or more Martin Luther King Jr. events every year. This year, we will have a luncheon and informal table discussions based on facts about Dr. King and quotes from his public appearances and published work. As I was going through the facts and quotes, I came upon this quote: "No work is insignificant. All labor that uplifts humanity has dignity and importance and should be undertaken with painstaking excellence." (The quote is apparently from Strength to Love, a 1963 book of Dr. King's sermons.) Admittedly, it spurred me on and made me feel more than a bit better about devoting much of my day to somewhat menial tasks.
As I continued to read through the quotes, I kept finding more and more that interested me. I observed that, among other things, Dr. King's speeches and writings address leadership in many ways. One of my favorites along these lines: "Change does not roll in on the wheels of inevitability but comes through continuous struggle." Yes! And another: "An individual has not started living until he can rise above the narrow confines of his individualistic concerns to the broader concerns of all humanity." Right! And inspiring, too, for those of us who are concerned about our students.
As I think about teaching materiality (in Securities Regulation), public company charter and bylaw issues (in Advanced Business Associations), and closely held corporation bylaw drafting (in Representing Enterprises) tomorrow, I plan to carry Dr. King's courage, perseverance, and energy into my day. And I hope that my students are ready to respond to my teaching with enthusiasm, trust, and confidence at this early stage of the semester. "Faith," Dr. King said, "is taking the first step, even when you don’t see the whole staircase." I may read that in class tomorrow . . . .
Tuesday, January 7, 2020
More on Incorporating Negotiation Exercises Into Business Law Courses: Some Help from Professor George Siedel
I’ve previously blogged about using negotiation exercises in my undergraduate and graduate Business Law/Legal Environment courses (here). I’ve also mentioned that, having taught both business law and negotiation courses in a law school, I know that such exercises would also work well in a law school business law course.
Last August, at the Annual Conference of the Academy of Legal Studies in Business, I had the good fortune of catching up with Professor Susan Marsnik from the University of St Thomas Business School. Eventually, our conversation turned to one of my favorite topics: negotiation! Marsnik mentioned that Professor George Siedel, the Williamson Family Professor of Business Administration Emeritus and the Thurnau Professor of Business Law Emeritus at the University of Michigan, had written some great negotiation materials (here), and they were free! Obviously, I couldn’t wait to learn more! And now that I have, via Marsnik’s help, I wanted to pay it forward!
Siedel’s comprehensive negotiation materials center on the sale of a house, and include Seller/Buyer roles. He shares that “Over the years, I have developed and tested “The House on Elm Street” exercise in undergraduate and MBA courses and in executive seminars in North America, South America, Asia and Europe. The courses and seminars have been developed for (or have included) a wide range of participants, such as athletic directors, attorneys, engineers, entrepreneurs, managers, and physicians.” (p. 2)
What is absolutely wonderful about Siedel's materials is that he also provides not only a slide deck, but also a twenty-page teaching note, Why and How to Add Negotiation to Your Introductory Law Course, to guide you through how to teach the exercise. This is key. He states (and I agree) that many professors don’t include negotiation exercises in their business law courses because there is already so much material to cover, and perhaps more importantly, they don’t feel qualified to teach it. That’s the beauty of these materials: Siedel walks you through teaching the exercise, step by step! Many negotiation exercises for purchase do include teaching notes. However, Siedel’s teaching notes are free, and among the most comprehensive that I’ve seen. What are you waiting for?
In my experience, students love negotiation exercises. Probably like many BLPB readers, I’m tweaking and finalizing my spring 2020 course syllabi as the new semester is around the corner. I encourage you to review Siedel’s excellent materials, and consider including negotiation exercises in your business law courses. It would be ideal if: 1) students were to be able to read at least some of a good negotiation text such as Siedel’s Negotiation for Success: Essential Strategies and Skills or Richard Shell’s Bargaining for Advantage: Negotiation Strategies for Reasonable People, and 2) you had a full 75 minutes to debrief the negotiation exercise. However, from my perspective, you shouldn’t let the absence of either deter you, especially from trying out the negotiation exercise for the first time. That’s exactly how I’m about to proceed, and I’ll keep you posted on how it all turns out.
Finally, a huge THANK YOU to Professor Siedel for creating and making these materials available!
Monday, January 6, 2020
Business Associations is a tough course to teach, whether it is taught in a three-credit-hour or four-credit-hour format. I have written before (here, here, and here) about the challenges of teaching fiduciary duties in this course. And I recently posted here and here about the characterization of a classic oversight conundrum as a matter of corporate fiduciary duty law in Delaware.
I just recently finished grading my Business Associations exams from last semester. They were a good lot overall, but they evidenced several somewhat common errors that seemed to beg for broad dissemination to the class. So, I sent them all a message inviting them to come in and review their exams and highlighting certain things for their attention of a more general nature.
Today, I offer you that general counsel that I gave to my Business Associations students based on that review of their written final exams. It is set forth below, absent my introductory and closing remarks. As you'll see, some of it relates to substantive law, and some of it relates to exam or other skills. Perhaps this is of use to those of you who just taught or are about to teach the course. Maybe some students will read it and learn from it. Regardless, here it is.
- Agency rules and management rules in business associations law are often confused. Agency rules express the authority of a person to act on behalf of the firm in transactions with third parties--those who enter into transactions with the firm. For example, by default under the RUPA, each partner in a RUPA partnership is an agent of the partnership that can bind the partnership to contracts with others. Management rules, by contrast address the governance and control authority of a particular firm constituent within the governance structure of the firm. Thus, agency rules relate to authority that is outward-facing (pertaining to transactional parties) and management rules relate to authority that is inward-facing (pertaining to internal constituents of the firm). For example, by default under the RUPA, each partner has an equal right to manage the partnership.
- Similarly, the concept of "limited liability" is commonly understood to refer to the limited liability of a firm owner for the firm's obligations. For example, under the RUPA, each partner is jointly and severally liable for the obligations of the partnership, whereas under corporate law, shareholders are not personally liable for the corporation's obligations to third parties. Exculpation, which eliminates the monetary liability of directors in the corporate context, relates to corporate governance claims--legal actions for breach of the fiduciary duty of care. This is internal governance litigation that does not relate to corporate obligations to third parties. So, while exculpation does limit (eliminate) a director's personal liability for a breach of the duty of care, it is not part of what people generally refer to as "limited liability" in a corporate context.
- Fiduciary duties are typically understood to instill or increase trust in relationships. Accordingly, they are commonly employed to provide a benefit in circumstances involving untrustworthy business associates. Yet a number of you seemed to think they were an undue burden to business venturers in circumstances where trust may be lacking (i.e., where fiduciary duties should be useful). You will need to make a solid argument to most folks to justify that the detriments outweigh the benefits.
- If an exam or assignment question asks for you to talk about why one set of rules is better than another in addressing a specific scenario, make sure you contrast examples from the two sets of rules, applying each to the relevant facts.
- Read questions carefully and closely. When a question asks for you to reference or rely on statutory default rules,ensure that your response references or relies on statutory default rules--not on ways on which those rules can be or have been agreed around through private ordering. When a question asks for information or an evaluation or rules relating to member-managed LLCs, ensure you directly address member-managed LLCs in lieu of (or at least before) commenting on manager-managed LLCs or the flexibility of moving back and forth between member-managed and manager-managed LLCs.
- Don't forget to cite to an appropriate source for rules on which you rely in your legal analysis.
- Keeping track of and managing time is important to the bar exam and other in-class timed exercises. If you ran out of time in responding to the prompts on this exam, evaluate why. I can help, if need be. But understanding how and why your time management skills may have failed you can be important.
Feel free to add your observations or advice of a similar (or different) nature in the comments. I am teaching Advanced Business Associations this semester, so I can work on some of these things during that course. In any event, I wish you all a happy and healthy semester and year, whatever you may be teaching or doing.
Monday, December 30, 2019
The title of this post is the core question behind a transactional law laboratory that I am co-teaching with my amazing colleague Eric Amarante for a seven-week period starting next week. The course is being taught to the entire 1L class (intimidating!) in one two-hour class meeting each week. In essence, the course segments explore, principally through the subjects taught in the first-year curriculum, the nature of transactional business law. This is our first semester teaching this course, which is a substantially revised version of a course UT Law added to its 1L curriculum three years ago. We are pretty jazzed up about it--but understandably nervous about how our course plan will "play" with this large group.
Because 1Ls come to transactional business law from various different backgrounds and experiences (including different first-semester law professors), we plan to begin by striving to develop some common ground for our work. To that end, I am asking for a late Christmas present or early New Year's gift from all of you: your answer to one or more of the following questions. How would you define transactional business law? What are some examples of this kind of practice? What makes a good transactional business lawyer? Why should every law student need to know something about transactional business law (and what should they need to know)? Let me know.
These are the kinds of questions we'll be probing through discussions, drafting, problem-solving, and other in-class and out-of-class experiences in the context of contract law, property law, tort and criminal law, agency law, professional responsibility, and more. The objective is substantive exposure, not mastery. Although teaching 125+ students at once is a tall order (and we will be breaking the class down into small groups for various activities), I admit that I am a bit excited about this. I hope you are, too, and that a few of you will respond in the comments or send me a private message.
In the mean time, enjoy the waning holiday season. I wish a happy new year to all. And (of course) I wish good luck to the many among you who also are starting a new semester in the coming weeks.
Tuesday, August 20, 2019
The City University of New York (CUNY) School of Law seeks highly-qualified candidates for a tenured or tenure-track faculty appointment to begin in Fall 2020. The principal responsibility of this faculty member will be to teach business law related courses, including Business Associations, U.C.C. Survey, and Contracts. All faculty are also expected to teach our first-year Lawyering course on a rotating basis, and all faculty are expected to teach in both the day and evening programs on a rotating basis.
CUNY SCHOOL OF LAW: "LAW IN THE SERVICE OF HUMAN NEEDS"
CUNY School of Law is a national leader in progressive legal education: we are ranked first in the country for public interest law and third in the county for clinical programs, and we are one of the most diverse law schools in the nation.
Our mission at CUNY School of Law is two-fold: training public interest attorneys to practice law in the service of human needs; and providing access to the profession for members of historically underrepresented communities. The Law School advances that mission though an innovative curriculum that brings together the highest caliber of clinical training with traditional doctrinal legal education to train lawyers prepared to serve the public interest. The basic premise of the law school's program is that theory and abstract knowledge cannot be separated from practice, practical skill, professional experience and the social, cultural, and economic context of law. The curriculum therefore integrates practical experience, professional responsibility, and lawyering skills with doctrinal study at every level.
Successful candidates will have:
a) J.D., L.LB., or Ph.D in a law-related discipline;
b) admission to law practice;
c) social justice lawyering experience;
d) a demonstrated commitment to the mission of CUNY School of Law;
e) availability and willingness to teach in the day and evening programs on a rotating basis;
f) availability and willingness to teach the first-year Lawyering course on a rotating basis (experience teaching legal writing preferred);
g) commitment to scholarly engagement (established scholarly record preferred);
(a) a demonstrated commitment to excellent teaching (ability to teach in both a classroom and clinical setting preferred); and
(b) demonstrated success as a faculty member, including the ability to collaborate with others and share responsibility for committee and department assignments.
CUNY offers faculty a competitive compensation and benefits package covering health insurance, pension and retirement benefits, paid parental leave, and savings programs. We also provide mentoring and support for research, scholarship, and publication as part of our commitment to ongoing faculty professional development.
HOW TO APPLY
Interested candidates should apply at www.cuny.edu by accessing the employment page, logging in or creating a new user account, and searching for this vacancy using the Job ID (20886) or Title (Assistant, Associate, or Full Professor of Law) then selecting "Apply Now" and providing the requested information. (Link at :
The application requires a CV/resume and a cover letter, indicating the position to which you are applying.
Friday, August 16, 2019
Last week, I led a “legal hack” for some of the first year students during orientation. Each participating professor spoke for ten minutes on a topic of our choice and then answered questions for ten minutes. I picked business and human rights, my passion. I titled my brief lecture, “Are you using a product made by slaves, and if you are, can you do anything about it”?
In my ten minutes, I introduced the problem of global slavery; touched on the false and deceptive trade practices litigation levied against companies; described the role of shareholder activists and socially responsible investors in pressuring companies to clean up supply chains; raised doubts about the effectiveness of some of the disclosure regimes in the US, EU, and Australia; questioned the efficacy of conscious consumerism; and mentioned blockchain as a potential tool for provenance of goods. Yes. In ten minutes.
During the actual hack later in the afternoon, I had a bit more time to flesh out the problem. I developed a case study around the Rana Plaza disaster in which a building collapse in Bangladesh killed over 1,000 garment workers six years ago. Students brainstormed solutions to the problems I posed with the help of upperclassmen as student facilitators and community stakeholders with subject matter expertise. At the end of the two-hour brainstorming session, the students presented their solutions to me.
We delved deeper into my subject matter as I asked my student hackers to play one of four roles: a US CEO of a company with a well-publicized CSR policy deciding whether to stay in Bangladesh or source from a country with a better human rights record; a US Presidential candidate commenting on both a potential binding treaty on business and human rights and a proposed federal mandatory due diligence regime in supply chains; a trade union representative in Bangladesh prioritizing recommendations and demands to EU and US companies; and a social media influencer with over 100 million followers who intended to use his platform to help an NGO raise awareness.
This exercise was identical to an exercise I did in March in Pakistan with 100 business leaders, students, lawyers, government officials, and members of civil society as part of an ABA Rule of Law Initiative. The only difference was that I asked Pakistanis to represent the Bangladesh government and I asked the US students to represent a political candidate.
In both Pakistan and Miami, the participants had to view the labor issues in the supply chain from a multistakeholder perspective. Interestingly, in both Pakistan and Miami, the participants playing the social media influencer rejected the idea of a boycott. Even though multiple groups played this role in both places, each group believed that seeking a boycott of companies that used unsafe Bangladeshi factories would cause more harm than good.
Of note, the Miami Law students did their hack during the call for a boycott of Soul Cycle due to Steve Ross’ decision to hold a fundraiser for President Trump. In my unscientific poll, three out of three students who patronized Soul Cycle refused to boycott. When it came to the fictionalized case study, all groups raised concerns that a boycott could hurt garment workers in Bangladesh and retail workers in the US and EU. Some considered a “buycott” to support brands with stronger human rights records.
I’ve written before about my skepticism about long term boycotts, especially those led by millennials. Some of these same students echoed my concerns about their own lack of sustained commitment on proposed boycotts in the past. The “winning” hack- #DoBetterBangladesh was a multipronged strategy to educate consumers, adopt best practices of successful campaigns such as the Imokalee
farm workers, and form acoalition with other influencers to encourage consumer donations to reputable NGOs in Bangladesh. After seeing what these student groups could do in just two hours, I can’t wait to see what they can accomplish after three years of law school.
Wednesday, August 14, 2019
This is my fifth year compiling a list of open business law professor positions in law schools and other settings (mostly business schools).
See the 2018-19, 2017-18, 2016-17, 2015-16 (law schools; business schools), and 2014-15 (law schools, business schools) lists to get a sense of what the market for business law professors has looked like over the past few years.
I will likely update this list from time to time; feel free to e-mail me with additions. Updated 9/30/19.
Law School Professor Positions – Business Area Identified
- American University (business law program director)
- City University of New York (CUNY)
- Emory University
- Northeastern University
- Ohio State University
- Pennsylvania State University
- Samford University
- Southern Illinois University
- Suffolk University (transaction legal clinic)
- University of Akron
- University of California-Davis (transaction legal clinic)
- University of Cincinnati
- University of Dayton
- University of Kansas
- University of Kentucky
- University of Massachusetts - Dartmouth
- University of Memphis
- University of Nebraska
- University of Richmond
- University of Wisconsin
- Vanderbilt University
- Washington University (St. Louis)
- Wayne State University
Legal Studies Professor Positions (Mostly Business Schools)
- Boise State University
- California State University-Los Angeles (real estate law focus)
- California State University-Northridge
- Christopher Newport University
- Hagerstown Community College
- Indiana University (possibly multiple positions)
- Ithaca College (full-time, non-tenure track)
- Morgan State University
- Sam Houston State University (2 positions)
- Sierra College (Community College)
- St. Bonaventure University (spring 2020 start)
- Temple University
- Texas State University
- Tulane University (visiting lecturer, full-time, non-tenure track)
- University of Georgia
- University of North-Texas (full-time, non-tenure track)
- U.S. Air Force Academy (visiting professor)
- Wake Forest University (full-time, non-tenure track)
- Wenzhou-Kean University (China)
Yesterday was the first day of 1L Orientation at Creighton University School of Law, which meant it was really my first day of school as a dean, too. I've been on the job for a month, but summer school has a very different feel. This morning I also dropped my son off for this first day of high school. (And my daughter starts 6th grade tomorrow.) It's a lot of firsts in our new city, at our new schools, and it's exciting. And perhaps a little intimidating. I am sure it was for our 1Ls, just like it was back when I started law school. And I was about to turn 30.
There's lots of good advice for new law students our there (here, for example), so I focused my brief welcome to our new 1Ls on introducing myself and laying out my expectations for all of us. This is obviously specific to Creighton Law, though I think and hope it is true at a lot of other places, too. I didn't actually write out a speech, but here's the gist:
First, I let our new students know that we’re in this together. I chose to be here, and so did they. We all had options, and this is where we chose to be. I wanted to mark that so that we can remember why, when things get tough, we're here in the first place. The reason is at least slightly different for all of us, but we made the same choice.
Next, I wanted them to know this: I have your back. I have told the same thing to our faculty and staff, too. That doesn't mean I can always say yes, but it does mean that I will work to see you, hear you, and help you.
I also made clear that I would not ignore the past, but I will work to make sure we do not relive it, either. Our institution (like many others) has faced many challenges, internally and externally. We have a path forward and a group of people committed to our students. I also wanted to make sure that they knew that even when, as a faculty, some of us disagree with each other, we all agree that our students come first.
I then talked about how I plan to help us move forward: by building a foundation based on trust, faith, and hope. Trust in each other. Faith in our institution and values, spiritual and otherwise. And hope that working together, we can build a better, and more just, future for everyone. I noted that a key thing about faith and trust, is that they are personal choices. No one can give them to others. We can be trustworthy, which I will work to do. And we can support others in their faith. But we each chose whether to trust and have faith. By choosing to do this job, I am putting a lot of trust and faith into this institution and its people, and I hope others will do the same.
Finally, I told our students what I need them to know:
You are a remarkable group. Every one of you belongs here, or you wouldn’t be here. We expect you to succeed, and we will help you succeed. I ask you to do everything you can to be all in. Be open and committed to what you are doing. This is a lot of work if you do it right, and it’s a lot of fun, too.
Good wishes to all of you in whatever your new beginnings may be. It's going to be a heck of a year.
Monday, August 12, 2019
In college, I majored in business administration with a concentration in finance, but I learned next to nothing about personal finance. Thankfully, my father provided some advice, and I did a bit of reading on the subject before I graduated law school. But I am still learning, and have dug deeper this summer.
More universities should instruct their students on matters of personal finance. As I mentioned a few months ago, I spoke on personal finance for a group of students at my university last school year, and I hope to bring Joey Elsakr to speak at my university this school year. Joey is a graduate student and is the co-founder of the blog Money and Megabytes.
Last week, Joey graciously invited me to guest post on his blog. As I mention in the post, I don’t think I have that much to add to his many useful and detailed posts on personal finance, but I do think personal finance gets a lot more difficult after you have a family (namely because there are so many more non-financial factors to weigh in most financial decisions). I pose some of those difficult questions in the linked post below, and I welcome any thoughts on those questions from our readers.
Friday, August 2, 2019
Later today, the students in my nine-week online Transactional Lawyering: Drafting and Negotiating Contracts Course will breathe a sigh of relief. They will submit their final contracts, and their work will be done. They can now start reading for their Fall classes knowing that they have completed the work for their required writing credit. My work, on the other hand, won’t end for quite a while. Although this post will discuss teaching an online course, much of my advice would work for a live, in person class as well.
If you’ve ever taught a transactional drafting course, you know that’s a lot of work. You are in a seemingly never ending cycle of developing engaging content, teaching the material, answering questions, reviewing drafts, and grading the final product. Like any writing course, you’re in constant editing and feedback mode with the students.
If you’ve ever taught an online course, you know how much work it can be. I taught asynchronously, meaning I uploaded materials and the students had a specific time within which to complete assignments, typically one week or more. Fortunately, I had help from the University of Miami’s instructional design team, otherwise, I would likely have been a disaster. They provided me with a template for each module, which forced me to really think through the objectives for each class session, not just the course as a whole. In my traditional courses I have learning objectives, but I have never gone into so much detail either in my head or in writing about what I wanted the student to get out of each individual class.
Teaching a drafting course online was much more work than I expected, but I can’t wait to do it again. If you’re thinking about it, learn from my travails and triumphs. First, here are my suggested “Do’s”:
- Find a way to build community: I wanted to ensure that students felt connected to me. I scripted a welcome video and the instructional design team filmed and edited it. This way students saw my face. I wanted the students to see each other as well, so I required them to film a 2-minute introductory video of themselves and upload it so that students could “see” their classmates. Students then commented on their peers’ videos welcoming them to the class. I did short videos for most of the modules, but these did not always show my face. No video was more than 10 minutes long because apparently today’s students can’t pay attention for too much longer than that.
- Have students work in groups (at first): I divided the 16 students into 4 law firms based in part on what I saw in their videos. I wanted some diversity of gender, race, and experience in the groups. Students drafted a law firm agreement outlining how they would interact with each other, meet deadlines, and resolve disputes. They also picked a firm name and managing partner. They assessed themselves and each other as group members based on criteria that I provided. The group work minimized the amount of feedback that I had to provide. As a group, they drafted the law firm agreement, a client engagement letter, and worked on a short contract. Some assignments were graded and some were ungraded. The group work counted for 10% of the grade. This percentage wasn’t enough of the grade to cause panic, and the team assessment ensured that they didn’t slack off and benefit from their peers’ hard work.
- Mix it up: For each class, I had students review a presentation on Echo 360. Often, they answered questions that I posed in the presentation or did exercises from Tina Stark’s contract drafting book. On other occasions, they posted responses to prompts on the discussion boards and commented (constructively) on other responses, citing the rule or principle that buttressed their position.
- Make them keep track of their time and do a bill: Every lawyer hates tracking time, but it’s a necessity. I tell the students that they’ll thank me later. Each student, even on group assignments had to track their time and turn in a bill. This helped me gauge how the groups and students compared to each other. I also knew which student worked on which parts of the contracts.
- Let them negotiate: After the group work portion of the course ended,the students negotiated the terms of their final contract using a set of secret facts. I required them to develop and turn in a negotiation strategy using materials and videos that I put together. Armed with their BATNAs, WATNAs, and ZOPAs, I told them to spend no more than one hour negotiating. I required them to film their negotiations, upload them, and send them to me. They then worked on individual term sheets (for a grade). After the negotiations ended and I had received all term sheets, I released the secret facts and had the students assess themselves and their opposing counsel on their negotiation skills and tactics. I also provided feedback to each student on their negotiation performance and term sheets.
- Require them to communicate with the client:I required a 1-2 page client cover memo or email for almost every assignment focusing on tone, language, use of legalese, etc. In my comments, I explained the importance of this type of legal writing and of tailoring the language to different types of business clients. When they worked on NDAs, I reminded that them that client may never actually read the contract, so they needed to ensure that the cover memo was sufficiently detailed to provide material information without being overwhelming.
- Make them teach: They say that when you teach, you learn twice. I required the each student to develop a 5-7 minute video on an assigned topic. Each student “presented” to either a group of lay/business people or a group of junior associates attending a CLE. They then had to write a blog post of between 750-1000 words. I required students to watch each other’s videos and comment as either a business person or a junior lawyer. This provided a review of the class for the viewers. This assignment counted for 10% of the grade, but as an extra incentive to take the assignment seriously, the student with the “best” video received an extra week to turn in the joint final contract, meaning that the opposing counsel also benefitted. FYI, I was generally blown away by the videos.
- Allow them to use precedents and then instruct them on the limitations: Many of the students had never seen an NDA, and I allowed them to use precedents. Most were surprised by how many comments I had on their final products, especially since many of the precedents came from big firms. This was a valuable lesson for them on precision and the dangers of blind cutting and pasting.
- Make them redline and draft a contract with opposing counsel:The final assignment required them to draft a contract based on their negotiated terms. They soon realized that they had to do additional negotiation because some of the terms did not make sense once they started to memorialize them.
- Have office hours and use video conferencing:I practically had to beg the students to have office hours with me. They had no problem emailing with questions, but generally didn’t utilize my office hours, which were incredibly flexible. I offered online and in person hours, but only two students met with me during the semester outside of the live mandatory office hours. I had a mandatory live grading session by video to discuss their NDAs, their upcoming negotiations, and any questions they had about the course. During that live grading session, I acted as a partner in their law firm and then stepped into professor role.
What didn’t work as well? As you can imagine, to do the job correctly, I had a LOT of work to do. I clearly gave too much work over a nine-week period, because I know much work I had to do to give them feedback. I just wanted them to be armed with the skills they will need in the real world, but I overdid it. And this meant that sometimes I did not meet my own deadlines for getting feedback to them. Truthfully, I imposed some of that burden on myself. I offered students the chance to turn in drafts of almost every assignment for feedback. About 25-30 percent of the students took me up on that offer, but every week, I emailed all of the students with tips to improve based on the trends that I saw. In retrospect, I would give fewer assignments over a longer period of time, and would better utilize the discussion boards to foster that sense of live class discussion.
After all of that, I’m gearing up to do it again for the Fall, this time over a 15-week period. Even though I will have more time, both I and the students will have other classes. I’m also teaching business associations and legal writing, and the students will have their own classes, jobs, law reviews, and extracurricular activities to contend with.
If you have any questions or tips, leave them below or email me at email@example.com. I plan to learn more about course development at the University of Denver hybrid/online learning conference on September 26th. I’ll update this post after that conference. In the meantime, this weekend, I’ll be retooling my syllabus based on my summer experience and what I’ve learned this week at SEALS. Correction, I’ll retool in between grading the joint contracts.
Tuesday, July 30, 2019
I made a similar post on social media last night, but with the first bar exam of my time as a law school dean beginning this morning, I thought I post those thoughts here. To this taking this bar exam (and any future bar exam):
You have worked hard, now is the time for you to show what you know. I wish you success. As you get ready to sit for the exam, your preparation is done. But there are still things you can do to improve your odds. Here’s what I ask you to do when you take the #BarExam:
*Be thorough.* Answer every question, written and multiple choice. Leave nothing blank. Give yourself a chance.
*Be focused.* Pay attention to time. Don’t spend twenty-five minutes on one multiple choice question or fail to get to an essay. Spend no more than your allotted time for each question, give an answer, and move on. Come back if you have time after everything else is answered.
*Be relentless.* If you make a mistake, do your best to work around it. If you don’t know something, give it your best guess and move on. Don’t give up. Don’t walk away. Don’t quit. You can do this.
And last, but not least, try to remember that this exam does not define you. The results don’t make you good or bad. This test is not who you are. It is is simply a result. It’s an important one, and it can impact you. But don’t ever let it define you.
My thoughts and good wishes are with you.
Friday, July 26, 2019
I'm at the tail end of teaching my summer transactional lawyering course. Throughout the semester, I've focused my students on the importance of representations, warranties, covenants, conditions, materiality, and knowledge qualifiers. Today I came across an article from Practical Law Company that discussed the use of #MeToo representations in mergers and acquisitions agreements, and I plan to use it as a teaching tool next semester. According to the article, which is behind a firewall so I can't link to it, thirty-nine public merger agreements this year have had such clauses. This doesn't surprise me. Last year I spoke on a webinar regarding #MeToo and touched on the the corporate governance implications and the rise of these so-called "Harvey Weinstein" clauses.
Generally, according to Practical Law Company, target companies in these agreements represent that: 1) no allegations of sexual harassment or sexual misconduct have been made against a group or class of employees at certain seniority levels; 2) no allegations have been made against independent contractors; and 3) the company has not entered into any settlement agreements related to these kinds of allegations. The target would list exceptions on a disclosure schedule, presumably redacting the name of the accuser to preserve privacy. These agreements often have a look back, typically between two and five years with five years being the most common. Interestingly, some agreements include a material adverse effect clause, which favor the target.
Here's an example of a representation related to "Labor Matters" from the June 9, 2019 agreement between Salesforce.com, Inc. and Tableau Software, Inc.
b) The Company and each Company Subsidiary are and have been since January 1, 2016 in compliance with all applicable Law respecting labor, employment, immigration, fair employment practices, terms and conditions of employment, workers' compensation, occupational safety, plant closings, mass layoffs, worker classification, sexual harassment, discrimination, exempt and non-exempt status, compensation and benefits, wages and hours and the Worker Adjustment and Retraining Notification Act of 1988, as amended, except where such non-compliance has not had, and would not reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect.
c) To the Company's Knowledge, in the last five (5) years, (i) no allegations of sexual harassment have been made against any employee at the level of Vice President or above, and (ii) neither the Company nor any of the Company Subsidiaries have entered into any settlement agreements related to allegations of sexual harassment or misconduct by any employee at the level of Vice President or above.
The agreement has the following relevant definitions:
"Knowledge" will be deemed to be, as the case may be, the actual knowledge of (a) the individuals set forth on Section 1.1(a) of the Parent Disclosure Letter with respect to Parent or Purchaser or (b) the individuals set forth on Section 1.1(a) of the Company Disclosure Letter with respect to the Company, in each case after reasonable inquiry of those employees of such Party and its Subsidiaries who would reasonably be expected to have actual knowledge of the matter in question.
Even though I like the idea of these reps. in theory, I have some concerns. First, I hate to be nitpicky, but after two decades of practicing employment law on the defense side, I have some questions. What's the definition of "sexual misconduct"? What happens of the company handbook or policies do not define "sexual misconduct"? The Salesforce.com agreement did not define it. So how does the target know what to disclose? Next, how should an agreement define "sexual harassment"? What if the allegation would not pass muster under Title VII or even under a more flexible, more generous definition in an employee handbook? When I was in house and drafting policies, a lot of crude behavior could be "harassment" even if it wouldn't survive the pleading requirements for a motion to dismiss. Does a company have to disclose an allegation of harassment that's not legally cognizable? And what about the definition of "allegation"? The Salesforce.com agreement did not define this either. Is it an allegation that has been reported through proper channels? Does the target have to go back to all of the executives' current and former managers and HR personnel as a part of due diligence to make sure there were no allegations that were not investigated or reported through proper channels? What if there were rumors? What if there was a conclusively false allegation (it's rare, but I've seen it)? What if the allegation could not be proved through a thorough, best in class investigation? How does the target disclose that without impugning the reputation of the accused?
Second, I'm not sure why independent contractors would even be included in these representations because they're not the employees of the company. If an independent contractor harassed one of the target's employees, that independent contractor shouldn't even be an issue in a representation because s/he should not be on the premises. Moreover, the contractor, and not the target company, should be paying any settlement. I acknowledge that a company is responsible for protecting its employees from harassment, including from contractors and vendors. But a company that pays the settlement should ensure that the harasser/contractor can't come near the worksite or employees ever again. If that's the case, why the need for a representation about the contractors? Third, companies often settle for nuisance value or to avoid the cost of litigation even when the investigation results are inconclusive or sometimes before an investigation has ended. How does the company explain that in due diligence? How much detail does the target disclose? Finally, what happens if the company legally destroyed documents as part of an established and enforced document retention and destruction process? Does that excuse disclosure even if someone might have a vague memory of some unfounded allegation five years ago?
But maybe I protest too much. Given the definition of "knowledge" above, in-house and outside counsel for target companies will have to ask a lot more and a lot tougher questions. On the other hand, given the lack of clarity around some of the key terms such as "allegations," "harassment," and "misconduct," I expect there to be some litigation around these #MeToo representations in the future. I'll see if my Fall students can do a better job of crafting definitions than the BigLaw counsel did.
July 26, 2019 in Compliance, Contracts, Corporate Governance, Corporate Personality, Corporations, Current Affairs, Employment Law, Ethics, Law School, Lawyering, Litigation, M&A, Management, Marcia Narine Weldon, Teaching | Permalink | Comments (0)
Sunday, July 21, 2019
Last Thursday and Friday, I had the honor and pleasure of joining a large group of women interested in law school leadership at the second annual Women's Leadership in Legal Academia conference. The two days provided many opportunities for education and inspiration. Four of my UT Law colleagues started off the conference with a workshop focused on microaggressions. My mini-workshop entitled "Leading from Where We Are" (picture above taken by fellow BLPB blogger Colleen Baker, who attended the session) followed.
The workshop extended my thoughts on leadership as a concept distinct from titles--thoughts I had touched on in an earlier blog post for the Leading as Lawyers blog. It also offered me the chance to describe an optimal organizational structure, with leaders at every key juncture. In introducing my panelists, I noted leadership attributes that I had observed in each and told a related/relevant story about our relationship. Then, we offered for discussion two hypothetical situations in which a faculty member is challenged to lead. In each case, we started with small group work and followed through with a report-out to the "committee of the whole." One of the hypotheticals involved a (potential) misunderstanding between the dean and the faculty, and the other related to a traumatic incident involving one or more students from one of your classes. The small group discussions yielded excellent thoughts for consideration in the larger group forum.
Among the observations? I will highlight just two here. First, that the way a faculty member handles a potentially divisive situation involving the dean and the faculty may depend on the dean's leadership style (dictatorial or collaborative, e.g.) and the level of mutual trust between the dean and the faculty. Also, in exploring the various ways in which a faculty member might address traumatic events known to the public (e.g., fires and floods) and those that are more private (e.g., a student death under unusual circumstances), we identified different levels of faculty comfort in addressing trauma in the classroom. There was especial discomfort in addressing individual, personal trauma.
Colleen or I may have more to say about the conference in future posts. I was thrilled with the creative energy generated by this panel. I am grateful to have had the opportunity to share and learn. What's more, organizing the session enabled me to reconnect with four fabulous leaders in legal academia and to meet many more. A total "win" for me.
Tuesday, July 16, 2019
I have been a dean for two days. So, obviously, I have it all figured out. (That's very much a joke).
My sample size is small, but it seemed like a good time for me to take a shot at comparing what it's like to be a new dean versus what it's like to be a new professor. Admittedly, I am working hard to remember what it was like to be a professor in his first two days. I have the benefit of hindsight with that, while my life as dean is very much real time. But hey, it's a blog, so I will give it a try.
- As a new professor, I was worried (very worried) that I did not know everything about the subject matter and that it would be obvious. As a new dean, I expect that others don't expect me to know everything, and if they do, I know they're wrong.
- As a new professor, I wanted everyone to like me. As a new dean, I'd still appreciate that. But I don't need it, and I don't expect it, and I know it is impossible. (It's impossible as a professor, too, by the way, if you do your job, but you can get closer to 100%.).
- As a new professor, my goals were largely personal. They were aligned with my institution, but they were about my goals. Promotion. Tenure. Publication. Citation. As a new dean, my goals are far more institutional. Bar passage. Jobs for students. Faculty opportunity. A high-quality and inclusive workplace.
- As a new professor, I was hopeful. I wanted to have an impact on students, policy, and our future. As new dean, I am hopeful. And I want the same things, too. My role is very different, by my goal is the same.
Short list, I suppose, but those are the comparisons the stick out to me.
I don't have any expectation that being a new dean is any easier than being a new professor. But one thing I learned as a new professor was that I need to be myself. As a new dean, I will make mistakes, just as I did as a new professor. I hope not to, but that's not how the world works. And it's not how learning works. Learning involves testing, trying, failing, and seeking solutions.
What's next? I will work to be myself. That's one advantage I have. When I started as a professor, I thought maybe I should be like other professors, and I worked to be "a professor." Dumb. I want to make sure any mistakes I make are mine and not me trying to be something I am not. I am not trying to be a dean. I just am one. If nothing else, I hope that will make it easier for people to forgive mistakes.
To my new professor and new dean colleagues, good luck. Let's try to be ourselves and show our students and faculty and staff colleagues that genuineness has value. Because it does. It combines well with hard work, too.
Tuesday, June 18, 2019
My colleagues started this series off well with Part I and Part II in the series, and I will try to build on their thoughts. There are so many decisions to make when you get started, including what book to use, what style you will use in the classroom, and what form or forms of assessment you will use. To start, I will echo Joan Heminway's advice because I think it is so critical: First, be yourself.
It's easy to to think of teachers you liked and think you need to teach like them to be effective. While we can all learn a lot from our best teachers, if you look closely, I think you'll find that the thing best ones have in common (in addition to being prepared) is that they are true to themselves. That is not to say that every person is the same in classroom as they are outside. Some people need to be actors -- they take on a persona when they hit the classroom. Others wear their hearts on their sleeves. Others are clinical, and still others are relaxed and casual.
You may not know immediately your full style or classroom voice, but in my experience you know pretty quickly what isn't your thing. My advice is to make sure you don't stick with something you know doesn't feel even a little bit right for you. You can experiment and push yourself to try new things, and you should. Just don't continue down a path that makes you feel like you're going the wrong way. Your students will feel it, too. Every time.
As for assessment, you'll need to decide: Will you use one big final exam? Will you have a participation grade? How about writing assignments or exercises? Will your exam be open book or closed book? There are lots of options, and none are inherently right or wrong, though some may be better than others, especially for you and/or your school. Here are some guidelines I use in deciding what to do:
(1) If there is a manageable way to incorporate more writing in to the class, do it. That might mean graded assignments, but it might mean in-class writing where students exchange their thoughts and compare it against a model or example answer. It might mean multiple small papers or a series of blog posts. The more students write, the better they will get at is. And it doesn't have to mean you will be grading 5 papers from 50 students in a semester. As long as their is some accountability -- that is, someone other than the student will read it -- I have found it valuable. Asking students to write for and assess themselves has value, too, but in my experience the participation rate for those assignments tends to be lower and with less commitment for many students.
(2) If you're not sure what to choose, or you're agnostic, find out what your colleagues tend to do, and do something different. For example, many of my colleagues have used open-book exams, so I chose to give a closed-book exam for Business Organizations. This gives students a different experience, which I think is valuable. If all my colleagues gave closed-book exams, I'd probably give an open-book one. I have done both types, by the way, and both are fine, though I prefer the output I get from closed-book exams. Students tend to write what they know instead of searching for the "perfect" answer in the book. If no one gives take-home exams, maybe consider that (though I hated those as a student and I don't like them as a teacher, your mileage may vary). Different assessment styles provide one way to give students an experience they need as professionals to work with different partners or judges or clients. Not every experience is the same, and the best lawyers are adaptable.
(3) Whatever you choose for any of these things, be intentional. Do it for a reason that is more than that's what my professor did or that's what people do here. You may choose a path for both reasons, but make sure you have considered other options and then made a conscious decision to follow that path. Be honest and open with yourself about why you chose that path. It will give you some comfort in your decision, as well as make it easier to see why you might want to change course in the future if your goals are not being met.
(4) Be open with your students about what you are doing. For me, that means explaining my thought process and why my rules are as they are. My students know why, for example, I am giving a closed-book exam, do or do not use participation points, will or will not be flexible on deadlines, or why they may not want to tell me the reason they are missing class. Note that this works even for professors who are notoriously Socratic and won't answer much of anything directly. For the good ones, it is at least clear what they will not do. That said, for me, it's important to be as clear as possible about the what and the why. Here is an example: in my energy law seminar, I tend to be flexible with deadlines (within reason) on due dates for drafts and papers, especially with advance notice. This is because the dates are somewhat arbitrary and designed as guidelines so I can provide feedback and students have time to internalize and incorporate my feedback. So, my students know that. But when I taught first-year legal writing, deadlines were absolute (or nearly so) with penalties up to including a failing grade for being one minute late. Why? One of my teaching goals there was to teach about severe and irrevocable deadlines that can be linked to court filings, statutes of limitation, and the like.
Anyway, that's a little about how I approach things. Good luck, and don't forget to give yourself a break. As hard as we try, not everything will go perfectly. And sometimes what seemed like the right path was wrong. Or it just went poorly. Try to figure out why, whether it was the idea, the execution, or an external factor, so you can decide whether to scrap it or just try again. Even the best teachers are not perfect. But they are careful, committed, and intentional. Start there, and good things will tend to follow.
Wednesday, May 29, 2019
Joey Elsakr, a PHD/MD student at Vanderbilt University, has teamed up with his roommate for a blog called Money & Megabytes. The blog covers personal finance and technology topics, which I think may be of interest to many of our readers and their students.
Last year, convinced that students need more guidance on personal finance, I gave a talk at Belmont University on the topic. Given the very limited advertising of the talk, I was surprised by the strong turnout. The students were quite engaged, and some simple personal finance topics seemed to be news to many of them. I plan on asking Joey to join me in giving a similar talk next year.
One post that I would like to draw our readers' attention to is Joey's recent post on his monthly income/expenses. You can read the entire post here, but here are a few takeaways:
- Know Where Your Money Goes. How many students (or professors!) actually have a firm grasp on where they are spending money? While creating a spreadsheet like Joey's could be time consuming, the information gained can be really helpful (and just recording the information -- down to your nail clippers purchase! -- probably makes you more careful). Bank of America users can create something similar, very quickly, using their free My Portfolio tab.
- Power of Roommates: Many of my students complain of the high rent prices in Nashville. Some have even said "it is impossible to find a decent place for under $1000/mo." Joey pays $600/mo, in a prime location near Vanderbilt, in a nice building, because he has two roommates. Also, because he has roommates, Joey only pays a third of the typical utilities. Now, if you have the wrong roommates, this could be problematic, but having roommates not only helps save you money but also helps work those dispute resolution skills.
- Charitable Giving. I am inspired that Joey, a grad student, devotes a sizable portion of his income to charitable giving. Great example for all of us.
- Multiple Forms of Income. Even though Joey is a dual-degree graduate student at Vanderbilt and training to make the Olympic Trials in the Marathon -- he ran collegiately at Duke University -- Joey has at least four different streams of income. Other than his graduate stipend, his other three streams of income appear to be very flexible, which is probably necessary given his schedule. This income may seem pretty minor, but it adds up over the year, and it gives him less time to spend money.
- Food Budget. This is an area where I think a lot of students and professors could save a good bit of money. My wife and I have started tracking our expenses more closely and the food category is the one where we have made the most savings -- thank you ALDI's. A lot of the food expenses are mindless purchases---for me, coffee and snacks from the Corner Court near my office---and those expenses add up quickly over the month.
Follow Joey's blog. Even though I consider myself fairly well-versed on personal finance topics, Joey recently convinced me that a savings account is the wrong place to house my emergency fund. And I agree with Joey's post here -- paying attention to personal finance can actually be a fun challenge. Joey's blog also introduced me to The Frugal Professor, though I am not sure I am ready to take the cell phone plunge quite yet.
Tuesday, May 28, 2019
I'll start with the exciting news that my Business Organizations students were 48 for 48 in recognizing that LLCs are not corporations. In fact, a number of my students specifically referred to "LLCs (NOT corporations) ..." in their exams. It's nice to be heard. I believe that's at least three years in a row without such a mistake, and maybe longer. I have evidence, at least on this issue, repetition is effective.
As for this summer, it is going to be an interesting one. I have now finished grading my last classes as a part of West Virginia Univerity College of Law. As some readers may know, I have accepted the opportunity to join Creighton University School of Law as the next dean. (For those wondering, my wife Kendra will be joining the Creighton Law faculty, as well, where, as was true at WVU, she will teach family law as a full professor.) After Kendra's run for Congress ended, she told me it was "my turn," and that I should pursue my goals. I don't think either of us expected such a big change so quickly.
Long before all of this became a reality, and after the campaign, we planned a family vacation to Europe for a month, so we'll be doing that with the kids -- Bulgaria, Germany, Italy, and Greece. Buying and selling a house, moving across the country, and starting new jobs (and new schools for the kids) will all be part of the mix, too, but hey, what's life without some adventure?
The fact that we're willing to leave should tell people just how much we believe in this opportunity. We have an absolutely incredible life already, with dear friends, amazing students, and a community of supportive and caring people. (Not to mention an absolutely gorgeous location.) And yet we're moving. I have high hopes and high expectations -- both for me and for my new institution. It's worth stating clearly that we have loved West Virginia and we have had incredible opportunities to grow both personally and professionally. I want people to know that we are not so much leaving West Virginia as we are going to Creighton, a possibility I wouldn't have without my time here at WVU.
I very much appreciate that, and because of all we have learned and experienced, new adventures await.
Friday, May 10, 2019
Join me in Miami, June 26-28.
June 26-28, 2019
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May 10, 2019 in Compliance, Conferences, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Financial Markets, International Business, Law Firms, Law School, Marcia Narine Weldon, White Collar Crime | Permalink | Comments (0)