Sunday, August 2, 2020
(A bit of the harvest picked from my parent's garden in north Georgia yesterday)
Last Thursday my neighborhood book club discussed work by poet David Whyte. This book club has been especially life-giving during the pandemic. I have deep admiration for every member of the group and always learn from our meetings. In March and April, we briefly moved to Zoom, but were unable to capture the same energy. We then decided to meet in person, bringing chairs to a member’s spacious driveway that backs up to common green space.
The work we discussed last week was not actually a book, but rather a few hours of David Whyte’s musings, only available in audio form. Much of the talk involves Whyte reading poetry – primarily his own, Rainer Maria Rilke’s and Mary Oliver’s – and relating that poetry to questions many of us ponder in midlife.
While I can’t locate the exact quote in the long recording, Whyte used a harvesting metaphor effectively. Whyte suggests that if we don’t slow down to be present for the harvest times in our lives, the fruit will rot on the vine. He reminds us, for example, that our child will only be five years old for a relatively short season. By being present for the harvest, I think Whyte means celebrate (among other things).
The practice of law, at least as it appears to be carried out by most major firms, leaves precious little time for celebration. In fact, during my handful of years at two major law firms, I can only recall a single occasion of truly pausing to celebrate the harvest.
This occasion involved a closing dinner. A celebratory dinner after closing a deal to buy or sell a company is relatively common in M&A practice. In my somewhat limited experience, however, law firms often organized these dinners to impress clients and tee up future deals. Networking, not savoring, is the focus. Often only the partners and clients attend closing dinners. The associates (or at least the junior associates) are usually back in the office working on the next matter.
This dinner was different. King & Spalding partner Russ Richards had just closed two relatively large deals in the same week with the assistance of same four associate attorneys. While the hours had been grueling, even by BigLaw standards, I didn’t expect to be invited to a closing dinner. Surprisingly, Russ not only invited the other three associates and me, but also encouraged us to bring a dates. Moreover, this was not a dinner to impress the clients; no clients were invited. We did not spend much time, if any, setting up future deals. We just celebrated work well done with wonderful wine, food, and company.
If there were more of this sort of unadulterated celebration of the harvest in BigLaw, I imagine the turnover would be much lower. And maybe one of the reasons Russ Richards excelled in a 45+ year career with the same firm is because he created moments of celebration and reflection like these. As I have argued before, I think one of the ways to make BigLaw more humane is to work in some time for celebration and rejuvenation, perhaps in the form of sabbaticals. A formal promotion to “senior associate” around the four-year mark, followed by a brief sabbatical (even as short as one month) would do wonders for the profession. Even longer sabbaticals, perhaps tied to a project improving the community, could be worthwhile as well.
Of course life is not, and probably should not be, constant celebration. To stretch Whyte’s metaphor further—as anyone who has tried their hand at farming knows—fruit that is the product of a season of sweat tastes sweeter than fruit obtained from a grocery deliver service. The gritty, difficult, back-spasm-inducing times are an important part of the process. That said, especially for those of us bent more in the direction of overwork, making some space to celebrate the harvest is essential.
Finally, and importantly, we should make a point to notice and celebrate the achievements of others. Whyte seems to focus on being present for the fruition of our own work, but I am convinced that pausing to celebrate the accomplishments of others can be even more worthwhile.
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.
Tuesday, May 19, 2020
I am teaching Business Associations this summer, and I am excited to get back in the classroom. Well, I was. Instead, I am teaching in virtual class room via Zoom. I am still glad to be interacting with students in a teaching capacity, but I sure miss the classroom setting. I am glad, though, to have this experience so I am closer to what this has been like for our students and faculty. I still have the benefit of my colleagues experiences, students who have been in the online learning environment, and a little time to plan, so it's better for me than it was for everyone in March. Still, there is quite a learning curve on all of this.
Over the past several years, I have asked students to create a fictional limited liability company (LLC) for our first class. It does a number of things. To begin, it connects them with a whole host of decisions businesses must make in choosing their entity form. It also introduces them to the use of forms and how that works. I always give them an old version of the form. This year, I used 2017 Articles of Organization for a West Virginia Limited Liability Company. It does a couple of things. There is an updated form (2019), so it gives me a chance to talk about the dangers of using precedent forms and accepting what others provide you without checking for yourself. (Side note: I used West Virginia even though I an in Nebraska, because Nebraska doesn't have a form. I use this one to compare and contrast.)
In addition, I like my students to see how most businesses start with entity choice and formation -- by starting one. It leads to some great conversations about limited liability, default rules, member/manager management choices, etc. Each year, I have had at least one person opt-in for personal liability, for example, for all members.
I also, which will shock no one, use the form to discuss the distinct nature of LLCs and how they are NOT corporations. And yet, the West Virginia LLC form tries to under cut me at each turn. For example, the form requires that the LLC name choose a "corporate name ending." From the instructions:
Enter the exact name of the company and be sure to include one of the required corporate name endings: “limited liability company,” “limited company,” or the abbreviations “L.L.C.,” “LLC,” “L.C.,” or “LC.” “Limited” may be abbreviated as “Ltd.” and “Company” may be abbreviated as “Co.” [WV Code §31B-1-105] Professional companies must use “professional limited liability company,” “professional L.L.C.,” “professional LLC,” “P.L.L.C.,” or “PLLC.” [WV Code §31B-13-1303]
Seriously, people. LLC are not corporate. In fact, choosing a corporate name ending would be contrary to the statute.
The form continues:
13. a. The purpose(s) for which this limited liability company is formed is as follows (required): [Describe the type(s) of business activity which will be conducted, for example, “real estate,” “construction of residential and commercial buildings,” “commercial painting,” “professional practice of law" (see Section 2. for acceptable "professional" business activities). Purpose may conclude with words “…including the transaction of any or all lawful business for which corporations may be incorporated in West Virginia.”] (final emphasis added)
Finally, the instructions state that
[t]he principal office address need not be in WV, but is the principal place of business for the company. This is generally the address where all corporate documents (records) are maintained.(final emphasis added)
My students know from day one this matters to me, and it's not just semantics. My (over) zealousness helps underscore the importance of entity decisions, and the unique opportunities entities can provide, within the default rules and as modified. My first day, I always make sure students see this at least twice: "A thing you have to know. LLCs are not Corporations!"
Is it overkill? Perhaps, we all have our things.
Oh, and it's time for West Virginia to add a 2020 update to the LLC form.
Wednesday, April 29, 2020
This has been quite a first year as a dean. Heck, it's been quite a year for all of us.
I woke up (very) early this morning, and it struck me that I hadn't been in contact with our students since Friday, which was our last day of classes. I don't want to be a distraction to their studies, but I also realized the midway through the first week, they might need a reminder of what they have accomplished in the face of unique and unprecedented challenges. Following is the note I sent our students, which I share for all of us who might need a reminder of what we're accomplishing. It is addressed to our Creighton Law students, but it's for all law students. Hang in there.
It’s the middle of the first week of what has to be the strangest finals we have ever experienced. This is always a time of hard work, long days, and high stress, but never before have we had to be so separate while going through it. We can’t experience study group or lunch breaks with friends, or play basketball or soccer in a group to blow off steam. In addition, there are health concerns for ourselves and loved ones, and many of us have kids at home, in wide ranges of ages who may need help with homework or just to be watched because the daycares are closed.
Despite all of this, you have shown up. You have worked, and you have learned. You are a remarkable group of people, and I am so proud of all you have accomplished. I know there is more to do, and I know this has not been easy. And there will continue to be bumps in the road, so I need you to know you can do this. Not just exams. Not just law school. All of it. You can do life, and you can be exceptional at what you do.
This is true even if you’re struggling right now. It’s not what happens in the next couple of days that will define you. It will be how you respond on the other side of this that matters, and from what I have seen, you are up to the task. And know you will have your Creighton Law community by your side, or at you back, when you need it.
I know you have a lot left to do, so I won’t take up more of your time. Please just know that even though we’re not in the law school, we’re still here for you. Keep at it, and know you’re not alone.
Tuesday, February 4, 2020
When do transactional business lawyers add value to projects? The literature tells us that transactional business lawyers can help correct information asymmetries and facilitate regulatory arbitrage through their knowledge and skills. That all seems right. But how can that message and other conceptions of value be conveyed to first-year law students in less than two hours in a mandatory, S/NC course (i.e., a course in which some--maybe many--of the students do not really want to be there and believe they have better uses for their time)? Welcome to my world, for today . . . .
Steve Bainbridge has a nice blog post relating to transactional business lawyers that our students are required to read before class. (Thanks, Steve!) We will discuss the absence of transactional business lawyers in popular culture, elucidate the value propositions they represent in real life, and work through some business transactional scenarios that illustrate the value (or lack thereof) of involving lawyers in the matter. I have worked out the class plan with my co-instructor (who cannot be there for this class meeting). But I am looking for more.
What, in your view, must I ensure that I cover--and how? Are there videos or charts that you recommend I "check out" for potential presentation to the class? I teach the main session on this topic tomorrow afternoon (and I had hoped to post this yesterday . . .), but I can always come back to this topic in a future class meeting, if I play my cards right. Let me know if you have ideas or views.
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.
Monday, December 16, 2019
Earlier today, the CLS Blue Sky Blog published a post written by Adam Sulkowski and me (thanks to Adam for taking the laboring oar on this piece at the outset!) on corporate governance lawyering in the blockchain era--the topic of our recent article published in the Wayne Law Review. A bit over a month ago, I posted the abstract for that article, together with some related commentary, here on the BLPB.
The CLS Blue Sky Blog includes some observations from our article about law practice in a corporate governance context if and as data storage and usage moves to blockchains. I want to highlight them by repeating them here.
Our specific recommendations relating to lawyering cover several areas. First, we advise attorneys not only to stay updated about applicable law and relevant interpretations, but also to expand their awareness. Serving clients responsibly will require more familiarity and astuteness with technology and operations. Second, we urge our colleagues in the practice of law – including those involved in the making and administration of laws – to be uncharacteristically forward-looking. It is prudent to be proactive in the contexts of advising firm management and public policymaking. Overall, we highlight that counsel has a critical role in thinking through all the implications and contingencies resulting from a move of any governance function or process to a blockchain-based platform.
Why might that critical role look like? I mentioned in my original post that Adam and I engaged in some visioning. Among other things,
[i]t may well fall to attorneys to help clients see and appreciate irrevocable consequences and the potential risks and opportunities. We suggest that anyone engaged in the practice and study of law has a role to play in provoking conversations and new ideas for policy solutions in the context of ambiguities. Eliminating doubts about the adoption and consequences of blockchain-enabled corporate governance will create more certainty for market participants and society.
Perhaps more strikingly, in the article,
. . . we discuss a conceptual reframing that several authors have suggested will be useful as a way of understanding our new role as attorneys. We proffer that that the lawyer’s role will evolve into that of a sort of translator – helping to transform human norms and values into software code. This is a key function in assuring that the deployment of technology serves its intended ends.
There are implications of these possible evolutions in the lawyer's role as corporate governance moves to blockchains. Those implications extend to the legal education setting.
This reconceptualization of business lawyering is relevant to the functions of legal educators and law schools. Based on our observations, there undoubtedly will be a growing need for lawyers who are familiar with both how blockchain technology can be deployed and laws relevant to corporate governance. Law schools should consider evolving their courses and business law curricula accordingly.
Overall, in the CLS Blue Sky Blog post, Adam and I offer a longer playing summary of our work. The additional information we provide there may help you to decide whether and when to read our entire article. To the extent you are not inclined to read the article, however, I hope that this post or that post may at least provoke some thought.
Monday, October 21, 2019
Given the number of corporate governance functions that can be conducted using blockchains, it seems appropriate to consider how business lawyers should respond to related challenges. Babson College's Adam Sulkowski and I undertook to begin to address this concern in an article we wrote for the Wayne Law Review's recent symposium, "The Emerging Blockchain and the Law." That article, Blockchains, Corporate Governance, and the Lawyer's Role, was recently released. An abstract follows.
Significant aspects of firm governance can (and, in coming years, likely will) be conducted on blockchains. This transition has already begun in some respects. The actions of early adopters illustrate that moving governance to blockchains will require legal adaptations. These adaptations are likely to be legislative, regulatory, and judicial. Firm management, policy-makers, and judges will turn to legal counsel for education and guidance.
This article describes blockchains and their potentially expansive use in several aspects of the governance of publicly traded corporations and outlines ways in which blockchain technology affects what business lawyers should know and do—now and in the future. Specifically, this article describes the nature of blockchain technology and ways in which the adoption of that technology may impact shareholder record keeping and voting, insider trading, and disclosure-related considerations. The article then reflects on implications for business lawyers and the practice of law in the context of corporate governance.
In the article, Adam and I do a fair amount of visioning. Based on the development of blockchain corporate governance we imagine, we conclude that business lawyers must both focus on understanding technology in the context of their clients' business operations and be proactive in providing legal advice relating to potential uses of the technology. We conclude that,
[i]n representing business clients, counsel have a critical role in thinking through all the implications of moving any governance function or process to a blockchain-based platform. It is especially important to help clients see, consider, and appreciate certain irrevocable consequences and legal risks, as well as potential opportunities. . . .
There is much for us all to learn in this area. A number of legal scholars are engaging in work that may be useful in better informing us. I, for one, try to attend as many of their presentations as possible as a means of better informing myself of what I need to know to teach corporate governance in the blockchain era. (We note in the article that blockchain corporate governance "impacts the job of legal educators and law schools.") I will continue to be on the lookout for additional work on blockchain corporate governance (and lawyering in an increasingly blockchain-driven world) and endeavor to highlight key things I find by posting about them here.
Saturday, September 7, 2019
Have you ever wanted to learn the basics about blockchain? Do you think it's all hype and a passing fad? Whatever your view, take a look at my new article, Beyond Bitcoin: Leveraging Blockchain to Benefit Business and Society, co-authored with Rachel Epstein, counsel at Hedera Hashgraph. I became interested in blockchain a year ago because I immediately saw potential use cases in supply chain, compliance, and corporate governance. I met Rachel at a Humanitarian Blockchain Summit and although I had already started the article, her practical experience in the field added balance, perspective, and nuance.
The abstract is below:
Although many people equate blockchain with bitcoin, cryptocurrency, and smart contracts, the technology also has the potential to transform the way companies look at governance and enterprise risk management, and to assist governments and businesses in mitigating human rights impacts. This Article will discuss how state and non-state actors use the technology outside of the realm of cryptocurrency. Part I will provide an overview of blockchain technology. Part II will briefly describe how public and private actors use blockchain today to track food, address land grabs, protect refugee identity rights, combat bribery and corruption, eliminate voter fraud, and facilitate financial transactions for those without access to banks. Part III will discuss key corporate governance, compliance, and social responsibility initiatives that currently utilize blockchain or are exploring the possibilities for shareholder communications, internal audit, and cyber security. Part IV will delve into the business and human rights landscape and examine how blockchain can facilitate compliance. Specifically, we will focus on one of the more promising uses of distributed ledger technology -- eliminating barriers to transparency in the human rights arena thereby satisfying various mandatory disclosure regimes and shareholder requests. Part V will pose questions that board members should ask when considering adopting the technology and will recommend that governments, rating agencies, sustainable stock exchanges, and institutional investors provide incentives for companies to invest in the technology, when appropriate. Given the increasing widespread use of the technology by both state and non-state actors and the potential disruptive capabilities, we conclude that firms that do not explore blockchain’s impact risk obsolescence or increased regulation.
Things change so quickly in this space. Some of the information in the article is already outdated and some of the initiatives have expanded. To keep up, you may want to subscribe to newsletters such as Hunton, Andrews, Kurth's Blockchain Legal Resource. For more general information on blockchain, see my post from last year, where I list some of the videos that I watched to become literate on the topic. For additional resources, see here and here.
If you are interested specifically in government use cases, consider joining the Government Blockchain Association. On September 14th and 15th, the GBA is holding its Fall 2019 Symposium, “The Future of Money, Governance and the Law,” in Arlington, Virginia. Speakers will include a chief economist from the World Bank and banking, political, legal, regulatory, defense, intelligence, and law enforcement professionals from around the world. This event is sponsored by the George Mason University Schar School of Policy and Government, Criminal Investigations and Network Analysis (CINA) Center, and the Government Blockchain Association (GBA). Organizers expect over 300 government, industry and academic leaders on the Arlington Campus of George Mason University, either in person or virtually. To find out more about the event go to: http://bit.ly/FoMGL-914.
Blockchain is complex and it's easy to get overwhelmed. It's not the answer to everything, but I will continue my focus on the compliance, governance, and human rights implications, particularly for Dodd-Frank and EU conflict minerals due diligence and disclosure. As lawyers, judges, and law students, we need to educate ourselves so that we can provide solid advice to legislators and business people who can easily make things worse by, for example, drafting laws that do not make sense and developing smart contracts with so many loopholes that they cause jurisdictional and enforcement nightmares.
Notwithstanding the controversy surrounding blockchain, I'm particularly proud of this article and would not have been able to do it without my co-author, Rachel, my fantastic research assistants Jordan Suarez, Natalia Jaramillo, and Lauren Miller from the University of Miami School of Law, and the student editors at the Tennessee Journal of Business Law. If you have questions or please post them below or reach out to me at email@example.com.
September 7, 2019 in Compliance, Conferences, Contracts, Corporate Governance, Corporations, CSR, Current Affairs, Financial Markets, Human Rights, Law Reviews, Lawyering, Legislation, Marcia Narine Weldon, Securities Regulation, Shareholders, Technology | Permalink | Comments (0)
Tuesday, August 27, 2019
Back in April, I posted on a leadership conference focusing on lawyers and legal education, sponsored by and held at UT Law. I also posted earlier this summer on the second annual Women's Leadership in Legal Academia conference. I admit that I have developed a passion for leadership literature and practices through my prior leadership training and experiences in law practice and in the legal academy.
Because lawyers often become leaders in and through their practice (both at work and their other communities) and because leadership principles interact with firm governance, I want to make a pitch that we all, but especially all of us teaching business associations (or a similar course), focus some attention on leadership in our teaching. It is a nice adjunct to governance. For example, management and control issues, especially director/officer processes in corporations, are a logical place to discuss leadership. Who are the managers and the rank-and-file employees inspired by in managing and sustaining the firm? Who is able to persuade the board to take action? Is it because of that person's authority, or does that person hold a trust relationship with others that motivates them to follow? And speaking of trust, it is an element of both leadership and fiduciary duty . . . .
As you consider my teaching suggestion, I offer you my latest blog post on our Leading as Lawyers blog. It involves the importance of process to effective leadership. The bottom line?
One can have a promising vision and strategy that emanate from the best of all intentions and ideas. But without engaging a process that includes effectual communication and input from, candid interchanges with, expressions of appreciation for, and buy-in from the relevant affected populations, those worthy intentions may be misinterpreted and those good ideas may die on the vine or not be implemented effectively.
We have all seen this happen in business governance. Let's let our students in on the role that leadership plays in the practical application of business law. It is bound to inform both their law practice and their lives.
Wednesday, August 14, 2019
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.
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 firstname.lastname@example.org. 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.
Monday, July 29, 2019
For last year's Business Law Prof Blog symposium at UT Law, I spoke on issues relating to the representation of business firms classified or classifiable as social enterprises. Last September, I wrote a bit about my presentation here. The resulting essay, Lawyering for Social Enterprise, was recently posted to SSRN. The SSRN abstract follows.
Social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Moreover, the law governing social enterprises also is unclear and unpredictable in respects. This essay identifies two principal areas of uncertainty and demonstrates their capacity to generate lawyering challenges and related transaction costs around both entity formation and ongoing internal governance questions in social enterprises. Core to the professionalism issues are the professional responsibilities implicated in an attorney’s representation of social enterprise businesses.
To illuminate legal and professional responsibility issues relevant to representing social enterprises, this essay proceeds in four parts. First, using as its touchstone a publicly available categorization system, the essay defines and describes types of social enterprises, outlining three distinct business models. Then, in its following two parts, the essay focuses in on two different aspects of the legal representation of social enterprise businesses: choice of entity and management decision making. Finally, reflecting on these two aspects of representing social enterprises, the essay concludes with some general observations about lawyering in this specialized business context, emphasizing the importance of: a sensitivity to the various business models and related facts; knowledge of a complex and novel set of laws; well-practiced, contextual legal reasoning skills; and judgment borne of a deep understanding of the nature of social enterprise and of clients and their representatives working in that space.
I hope that this essay is relatable and valuable to both academics and practicing lawyers. Feedback is welcomed. So are comments.
Also, I will no doubt be talking more about aspects of this topic at a SEALS discussion group later this week entitled "Benefit Corporation (or Not)? Establishing and Maintaining Social Impact Business Firms," which I proposed for inclusion in this year's conference and for which I will serve as a moderator. The description of the discussion group is as follows:
As the benefit corporation form nears the end of its first decade of "life" as a legally recognized form of business association, it seems important to reflect on whether it has fulfilled its promise as a matter of legislative intent and public responsibility and service. This discussion group is designed to take on the challenge of engaging in that reflective process. The participating scholars include doctrinal and clinical faculty members who both favor and tend to recommend the benefit corporation form for social enterprises and those who disfavor or hesitate to recommend it.
As you can see from the SEALS program for the meeting, the participants represent both academics (doctrinal and clinical) and practitioners who care about social enterprise and entity formation. If you are at SEALS, please come and join us!
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)
Friday, May 3, 2019
I blogged two weeks ago about whether we were teaching law students the wrong things, the wrong way, or both. I’ve been thinking about that as I design my asynchronous summer course on transactional lawyering while grading asset and stock purchase agreements drafted by the students in my spring advanced transactional course. I taught the spring students face to face, had them work in groups, required them to do a a negotiation either in person or online, and am grading them on both individual and group work as well as class participation. When I looked at drafts of their APAs and SPAs last week, I often reminded the students to go back to old PowerPoints or the reading because it seemed as though they missed certain concepts or maybe I went through them too quickly— I’m sure they did all of the reading (ha!). Now, while designing my online course, I’m trying to marry the best of the in person processes with some of the flipped classroom techniques that worked (and tweaking what didn’t).
Unlike many naysayers, I have no doubt that students and lawyers can learn and work remotely. For the past nine years, I have participated as a mentor in LawWithoutWalls, a mostly virtual experiential learning program started by University of Miami professor Michele DeStefano. Also known as LWOW, the program matches students from around the world with business people and practicing lawyers to develop a project of worth over sixteen weeks. Team members meet in January in person and never see each other in person again until April during a competition that is judged by venture capitalists, lawyers, entrepreneurs, and academics. I mentored a team of students from Bucerius in Germany, Wharton in Pennsylvania, and the University of Miami. Banking behemoth HSBC sponsored our project and staffed it with lawyers from Singapore, Canada, and the UK. Other mentors on the team hailed from Spain and the UK. On any given week, 7-10 people joined Skype calls, chatted in WhatsApp, drafted on Google Docs, and accessed Slack. They attended mandatory webinars weekly via Adobe Connect on developing business plans, pitching to VCs, and working with clients. Seventy percent of the people on the seventeen teams spoke languages other than English as the first language.
How did this virtual experience work? Extremely well, in my view. After some growing pains, students adjusted quickly as did the business partners, who are used to setting up conference calls and working across borders. Some of the winning teams developed projects that provided virtual reality training on implicit bias for police officers; informed consumers about food freshness to combat food waste; and organized health information for foster care children on a blockchain-powered platform. Humble brag- my team won best overall project by developing a solution to use blockchain and smart contracts in syndicated lending that has the potential to save the bank almost 2 million per year. I also mentored last year’s winner, Team Spotify, with students from Miami, Colombia, and Chile and lawyers housed in Sweden, California, and New York. Each year, teams do almost all of this hard work remotely, across time zones, and with language differences. Students collectively interview hundreds of subject matter experts over 16 weeks, and the vast majority of those interviews take place via phone or video and with people in different countries. Other sponsors for LWOW included Accenture, White and Case, Pinsent Mason, Microsoft, Cozen O'Connor, LegalZoom, Eversheds Sutherland, LatAm Airlines, and Legal Mosaic-- all companies and law firms that see the benefit of these skill sets. Significantly, every year, a cohort of teams does all of the work virtually, never meeting in person for a kickoff. That virtual team winner competes in person with the traditional teams each April, and often wins the whole competition. Clearly, these students develop special skills by necessity. I plan to learn from those experiences as I design my course.
My experience with LawWithoutWalls and as a former compliance officer (where we often did training online and via video) makes me optimistic about online learning and working. In my summer course, I will have students work in groups, where they will use the latest virtual teaming tools. I will have live office hours via Skype, Zoom, or FaceTime, and I will require that some of the groups do their meetings via video as well to have a connection outside of email. Students will draft and edit on community bulletin boards. They will post their own video presentations and "webinars" geared toward fictitious business clients. Working collaboratively and creatively are key skills in the real world, and they will be key in my class.
But there is a lot of resistance in both the legal community and academia regarding the online world. Last week, I attended a seminar at a law firm and met a member of the Florida Board of Bar Examiners. I asked his opinion on the state of students and young lawyers. I was particularly interested in his thoughts because he’s also a partner at a large law firm in our state. Like some quoted in my prior post, he believes that online coursework is a poor substitute for face to face learning. He further opined that when people don’t work in offices, they miss the camaraderie of being around peers and their work suffers. These are valid concerns. Many lawyers are unhappy in general, and the way people hide behind digital devices (even when in the same room/office) can lead to isolation, depression, and poor networking and social skills.
But these drawbacks should not doom online learning and remote working. Most of my graduating 3Ls will take their bar prep courses online. They claim that it makes no sense to drive to campus “just to watch a video of a professor speaking.” They also like the idea of being able to rewind videos to take notes. The indicated that they will meet up with friends when they want to study together and may even come on campus to watch their online coursework for a sense of community. But significantly, they don’t see the need to learn in the traditional ways. Personally, I love good online courses but I also love the ability to have face to face interaction with teammates- even if that’s via video. Being in the same physical space also allows for chance interactions that can lead to enriching conversations. On the other hand, sometimes there's no choice. Many readers may remember that years ago, in harder economic times, companies cancelled non essential business travel and people got used to video meetings. Many employers now interview candidates by Skype first before bringing them in. Learning and working virtually is no longer a novelty. Some of our students will work in co-working spaces for firms or companies where everyone works from home.
Change is coming and in many places, already here. Law professors must prepare students to practice in this new world while not sacrificing pedagogical gains. This requires training on project management and effective communication with team members— all non-substantive topics and that will give many people pause. We also need to make sure that students know how to communicate with clients and employers face to face in business and social settings. Some professors will say- correctly- that they have enough to contend with making sure students understand the law and can pass the bar. But, for those of us interested in online learning, we need to do more. We have to make sure that we prepare students for both the "hard" and "soft" skills. Most important, we need to make sure that these online courses have the rigor of traditional classes-- US News is watching.
I’m open to suggestions of what has worked for you and what hasn’t so please feel free to comment below or email me at email@example.com.
Monday, April 29, 2019
My essay, "Mr Toad's Wild Ride: Business Deregulation in the Trump Era," was recently published by the Mercer Law Review as part of a volume featuring works from a recent symposium on "Corporate Law in the Trump Era." The symposium was held back in October and resulted from ideas shared at a discussion group on "Corporate and Financial Reform in the Trump Administration" convened for the 2017 Southeastern Association of Law Schools conference. A portion of the introduction explaining the overall nature of the essay follows (footnote reference omitted).
This Essay identifies and takes stock of the Trump Administration’s deregulatory efforts as they impact business interests, with the thought that even incomplete or biased information may be useful to transactional business lawyering. What of significance has been done to date? With what articulated policy goals, if any? How may—or how should—the success of the administration’s business deregulatory plans and programs be judged? What observations can be made about those successes? For example, who may win and lose in the revised regulatory framework that may emerge? The Essay approaches these questions from a transactional business law perspective and offers related observations. Spoiler Alert: to date, the deregulatory journey is characterized by haphazardness not unlike the motorcar experience that is the subject of the beloved Disneyland attraction, Mr. Toad’s Wild Ride—a joyride that includes surprises and may sometimes feel like it is taking us “merrily, merrily, merrily, merrily, merrily on our way to nowhere in particular!”
This is the second essay in a pair that I wrote over the past year on deregulation and the presidency. I posted on the first essay here, with a bit of information about the project as a whole (which had its genesis in BLPB posts by Anne Tucker and me).* I also posted on this project back in September, here. Thanks to those of you who responded with ideas in the comments and in private messages in response to these earlier posts.
Although not all of those comments made it into my work implicitly or explicitly, they were nevertheless helpful as I researched and thought through my theses on these two short reflective pieces. I do have many more ideas relating to this topic. No doubt those ideas--and some of yours--will find their way into other work as time moves on.
* In reviewing my prior posts for this post, I noted that the text of this post has the year of the Southeastern Association of Law Schools discussion group wrong. It did, in fact, occur in 2017, and it therefore preceded the Association of American Law Schools conference discussion group referenced in the post. I left a postscript on that page, but I wanted to clarify the matter here also.
Friday, April 19, 2019
It's that time of year again. Many states have released February 2019 bar passage rates. Thankfully, the rates have risen in some places, but they are still at suboptimal levels. Indeed, the July 2018 MBE results sunk to a 34- year low. A recent article on law.com lists some well-known statistics and theories, explaining, in part:
Kellye Testy, president of the Law School Admission Council . . . suspects the falling pass rates are the results of a combination of factors, the most obvious being the lower credentials of incoming students. The declining quality of public education—meaning an erosion of the reading and writing foundations children develop in elementary and high schools—may also be a contributor, she said. Moreover, the evolving way that law is taught may explain why today’s law graduates are struggling more on the bar exam, said Testy, whose organization develops the LSAT. Professors now put less emphasis on memorizing rules, and have backed off on some of the high-pressure tactics—like the Socratic method—that historically dominated the classroom. “The way we used to teach wasn’t as good for caring for the student, but it made sure you could take a closed-book exam,” she said. “You knew the doctrine. It was much more like a bar exam, in some ways. Today, when you go into a classroom, it’s all PowerPoint. The teachers give them an outline, the students are on computers. There’s a different student approach and a different faculty approach.” The fact that so many law graduates now take bar preparation courses online rather than in person is another avenue worth examining for a potential correlation to falling pass rates, said Judith Gundersen, president of the National Conference of Bar Examiners. “You used to have to go to a lecture and show up every day,” she said. “Now so much of it is online. People are wondering whether that’s changing how people prepare, because there just isn’t that communal aspect where, ‘I have to prepare in case I get called on.’”
I'm not sure how I feel about these assertions. I agree that many students lack some of the key critical thinking and writing skills needed to analyze legal problems. I also see far fewer professors using the strict Socratic method and more allowing computers in class. I allow computers for specific activities but not throughout the class. I also employ more of a modified Socratic method, use powerpoint, and often post it in advance with questions for students to answer prior to class so that we can spend time in class applying what the students have learned. Am I doing a disservice to my students with a flipped classroom? Do we need to go back to rote memorization and cold calling students for the bar passage rates to rise? And if so, will that make our students better lawyers?
I remember how difficult it was to take the Florida bar after three years of law practice in New York. The rote memorization helped me pass the bar exam while working a full time job and caring for an infant as a single mother. But it didn't make me a better lawyer. Having worked for three years, I remember slogging through bar study thinking that what I was learning in bar prep had little to do with what I actually did in practice. When I prepared for the New York and New Jersey bars, I went to classes live but some were in a classroom via video. I'm not even sure that purely online courses were an option back in 1992. When I moved to Florida and studied for that bar, I used tapes in my car (yes, it was 1996). I had tried the live courses for a few days and realized that my time was better spent reciting the rules of evidence to my son in lieu of nursery rhymes. I passed three bars using two different methods but I wonder how well I would have done with an online version, the way most students study for the bar now.
I no longer teach courses tested on the bar, but when I did, I had the perpetual conflict-- how do I make sure that the students pass the bar while instilling them with the knowledge and skills they will actually need in the real world? I see now how some of my transactional lawyering students dread going to the bar prep classes offered during the semester. But they also consider these classes a necessity to pass the bar even through they will engage in full time bar prep upon graduation. Does the proliferation of these law school bar prep classes mean that the doctrinal professors aren't teaching the students the way we learned? Or does it mean that that the students are no longer learning the way we did? I don't have the answers.
But these articles do have an effect on how and what I teach. Under ABA Standard 306, law schools can offer up to one-third of their credits online, including up to ten credits for first-year coursework. As I prepare to teach my contract drafting and negotiation class asynchronously online for the first time this summer, I'm learning about presenting information in short, digestible chunks for the students- no more than 15-20 minutes per video, and preferably even shorter, I'm told. I'm also reviewing the conflicting evidence about whether online courses are a help or a hindrance.
Some of my students have taken many courses online as undergraduates. As a compliance officer, I required employees to take courses online and did live training. Personally, I like taking online courses. But I don't know enough about how well students retain the information and how well they learn to use key skills to serve clients. I'm fortunate, though, to have excellent instructional designers working with me who understand adult learning much better than I do. I'm convinced that more students will seek online courses and more schools will adopt them as a way of earning more revenue through developing programs for working professionals and JD students who need more flexible schedules. This means many more of us may need to prepare for this new way of teaching and learning.
Friday, April 12, 2019
As a former compliance officer who is now an academic, I've been obsessed with the $25 million Varsity Blues college admissions scandal. Compliance officers are always looking for titillating stories for training and illustration purposes, and this one has it all-- bribery, Hollywood stars, a BigLaw partner, Instagram influencers, and big name schools. Over fifty people face charges or have already pled guilty, and the fallout will continue for some time. We've seen bribery in the university setting before but those cases concerned recruitment of actual athletes.
Although Operation Varsity Blues concerns elite colleges, it provides a wake up call for all universities and an even better cautionary tale for businesses of all types that think of bribery as something that happens overseas. As former Justice Department compliance counsel, Hui Chen, wrote, "bribery. . . is not an act confined by geographies. Like most frauds, it is a product of motive, opportunity, and rationalization. Where there are power and benefits to be traded, there would be bribes."
My former colleague and a rising star in the compliance world, AP Capaldo, has some great insights on the scandal in this podcast. I recommend that you listen to it, but if you don't have time, here are some questions that she would ask if doing a post mortem at the named universities. With some tweaks, compliance officers, legal counsel, and auditors for all businesses should consider:
1) What kind of training does our staff receive? How often?
2) Does it address the issues that are likely to occur in our industry?
3) When was the last time we spot checked these areas for compliance ? In the context of the universities, were these scholarships or set asides within the scope of routine audits or any other internal controls or reviews?
4) What factors or aspects of the culture could contribute to a scandal like this? What are our red flags and blind spots? Do we have a cultural permissiveness that could lead to this? In the context of the implicated universities, who knew or had reason to know?
5) How can we do a values-based analysis? Do we need to rethink our values or put some teeth behind them?
6) How are our resources deployed?
7) Do we have fundamental gaps in our compliance program implementation? Are we too focused on one area or another?
8) Are integrity and hallmarks of compliant behavior part of our selection/hiring process?
Capaldo recommends that universities tap into their internal resources of law and ethics professors who can staff multidisciplinary task forces to craft programs and curate cultures to ensure measurable improvements in compliance and a decrease in misconduct. I agree. I would add that as members of the law and business community and as alums of universities, we should ask our alma maters or employers whether they have considered these and other hard questions. Finally, as law and business professors, we should use this scandal in both the classroom and the faculty lounge to reinforce the importance of ethics, internal controls, compliance with law, and shared values.
April 12, 2019 in Business School, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Law Firms, Law School, Lawyering, Management, Marcia Narine Weldon, Sports, Teaching | Permalink | Comments (0)
Tuesday, April 9, 2019
A 2017 opinion related to successor liability just posted to Westlaw. The case is an EEOC claim "against the Hospital of St. Raphael School of Nurse Anesthesia (“HSR School”) and Anesthesia Associates of New Haven (“AANH”), alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 . . . ." The plaintiff was seeking to join Yale New Haven Hospital (“YNHH”). MARGARITE CONSOLMAGNO v. HOSPITAL OF ST. RAPHAEL SCHOOL OF NURSE ANESTHESIA and ANESTHESIA ASSOCIATES OF NEW HAVEN, P.C., 3:11CV109 (DJS), 2017 WL 10966446, at *1 (D. Conn. Mar. 27, 2017).
There is no evidence that the HSR School had an existence that was independent of AANH. In fact, the HSR School was going to cease operating due to the fact that AANH was going to cease operating. The HSR School was not a limited liability corporation (“LLC”), private corporation (“P.C.”), or other legal entity registered with the Connecticut Secretary of State. (Tr. 141-142). There is no evidence that the HSR School had its own assets, bank account, or tax identification number. There is no evidence that the HSR School itself (as opposed to AANH) ever paid anyone for rendering services to the HSR School. There is no evidence that anyone other than AANH had operated the HSR School. Consequently, the Court finds that the predecessor in interest, for the purpose of assessing successor liability, is AANH.
Saturday, April 6, 2019
For the past two days, I had the privilege of attending a leadership conference hosted by UT Law's Institute for Professional Leadership. I admit to being pretty passionate about leadership literature, training, and cultivation. Some of that zeal no doubt comes from working with and studying the scholarship of business management. However, I also have participated in two academic leadership training programs over the past ten years, the Higher Education Resources Service's HERS Institute and the Southeastern Athletics Conference's Academic Leadership Development Program. Both were true eye-openers for me at a time when I was poised to assume a leadership role as our campus faculty senate president.
The conference this week was on developing leadership in lawyers. It is part of a series of conferences/symposia that a group of law faculty interested in this topic have been convening for a number of years now. Articles emanating from prior event proceedings are published here and here. The authors of many of the articles in those law review books have also authored stand-alone books and other works on leadership in the legal profession published elsewhere.
This week's conference treatments of the topic spanned a wide range, addressing (for instance) the places and methods for training lawyers to be leaders, since lawyers hold a disproportionately high number of leadership positions in the public sector. I enjoyed it all, but I was particularly inspired by the workshop on integrating well-being into leadership curricula, the roundtable discussions on what is already being done and what law practice needs, and the student/alumni panel on the importance and effectiveness of law school courses on leadership. There were lots of good ideas shared in these sessions and throughout the conference, and many seeds were sowed for action and further discussion. I hope to roll some of those ideas out on the BLPB over time.
Btw, the UT Law Institute for Professional Leadership has a blog. I plan to author some posts for the blog that I will certainly highlight here. But if you are interested in this topic more broadly, you may want to sign up to follow the blog by email (an option available on the blog site). Also, feel free to contact me or the Institute's director, Doug Blaze, for more information.