Friday, August 14, 2020
As an academic and consultant on environmental, social, and governance (ESG) matters, I’ve used a lot of loaded terms -- greenwashing, where companies tout an environmentally friendly record but act otherwise; pinkwashing, where companies commoditize breast cancer awareness or LGBTQ issues; and bluewashing, where companies rally around UN corporate social responsibility initiatives such as the UN Global Compact.
In light of recent events, I’ve added a new term to my arsenal—wokewashing. Wokewashing occurs when a company attempts to show solidarity with certain causes in order to gain public favor. Wokewashing isn’t a new term. It’s been around for years, but it gained more mainstream traction last year when Unilever’s CEO warned that companies were eroding public trust and industry credibility, stating:
Woke-washing is beginning to infect our industry. It’s polluting purpose. It’s putting in peril the very thing which offers us the opportunity to help tackle many of the world’s issues. What’s more, it threatens to further destroy trust in our industry, when it’s already in short supply… There are too many examples of brands undermining purposeful marketing by launching campaigns which aren’t backing up what their brand says with what their brand does. Purpose-led brand communications is not just a matter of ‘make them cry, make them buy’. It’s about action in the world.
The Black Lives Matter and anti-racism movements have brought wokewashing front and center again. My colleague Stefan Padfield has written about the need for heightened scrutiny of politicized decisions and corporate responses to the BLM movement here, here, and here, and Ann Lipton has added to the discussion here. How does a board decide what to do when faced with pressure from stakeholders? How much is too much and how little is too little?
The students in my summer Regulatory Compliance, Corporate Governance, and Sustainability course were torn when they acted as board members deciding whether to make a public statement on Black Lives Matter and the murder of George Floyd. As fiduciaries of a consumer goods company, the “board members” felt that they had to say “something,” but in the days before class they had seen the explosion of current and former employees exposing companies with strong social justice messaging by pointing to hypocrisy in their treatment of employees and stakeholders. They had witnessed the controversy over changing the name of the Redskins based on pressure from FedEx and other sponsors (and not the Native Americans and others who had asked for the change for years). They had heard about the name change of popular syrup, Aunt Jemima. I intentionally didn’t force my students to draft a statement. They merely had to decide whether to speak at all, and this was difficult when looking at the external realities. Most of the students voted to make some sort of statement even as every day on social media, another “woke” company had to defend itself in the court of public opinion. Others, like Nike, have received praise for taking a strong stand in the face of public pressure long before it was cool and profitable to be “woke.”
Now it’s time for companies to defend themselves in actual court (assuming plaintiffs can get past various procedural hurdles). Notwithstanding Facebook and Oracle’s Delaware forum selection bylaws, the same lawyers who filed the shareholder derivative action against Google after its extraordinary sexual harassment settlement have filed shareholder derivative suits in California against Facebook, Oracle, and Qualcomm. Among other things, these suits generally allege breach of the Caremark duty, false statements in proxy materials purporting to have a commitment to diversity, breach of fiduciary duty relating to a diverse slate of candidates for board positions, and unjust enrichment. Plaintiffs have labeled these cases civil rights suits, targeting Facebook for allowing hate speech and discriminatory advertising, Qualcomm for underpaying women and minorities by $400 million, and Oracle for having no Black board members or executives. Oracle also faces a separate class action lawsuit based on unequal pay and gender.
Why these companies? According to the complaints, “[i]f Oracle simply disclosed that it does not want any Black individuals on its Board, it would be racist but honest…” and “[a]t Facebook, apparently Zuckerberg wants Blacks to be seen but not heard.” Counsel Bottini explained, “when you actually go back and look at these proxy statements and what they’ve filed with the SEC, they’re actually lying to shareholders.”
I’m not going to discuss the merits of these cases. Instead, for great analysis, please see here written by attorneys at my old law firm Cleary Gottlieb. I’ll do some actual legal analysis during my CLE presentation at the University of Tennessee Transactions conference on October 16th.
Instead, I’m going to make this a little more personal. I’m used to being the only Black person and definitely the only Black woman in the room. It’s happened in school, at work, on academic panels, and in organizations. When I testified before Congress on a provision of Dodd-Frank, a Black Congressman who grilled me mercilessly during my testimony came up to me afterwards to tell me how rare it was to see a Black woman testify about anything, much less corporate issues. He expressed his pride. For these reasons, as a Black woman in the corporate world, I’m conflicted about these lawsuits. Do corporations need to do more? Absolutely. Is litigation the right mechanism? I don’t know.
What will actually change? Whether or not these cases ever get past motions to dismiss, the defendant companies are likely to take some action. They will add the obligatory Black board members and executives. They will donate to various “woke” causes. They will hire diversity consultants. Indeed, many of my colleagues who have done diversity, equity, and inclusion work for years are busier than they have ever been with speaking gigs and training engagements. But what will actually change in the long term for Black employees, consumers, suppliers, and communities?
When a person is hired or appointed as the “token,” especially after a lawsuit, colleagues often believe that the person is under or unqualified. The new hire or appointee starts under a cloud of suspicion and sometimes resentment. Many eventually resign or get pushed out. Ironically, I personally know several diversity officers who have left their positions with prestigious companies because they were hired as window dressing. Although I don’t know Morgan Stanley’s first Chief Diversity Officer, Marilyn Booker, her story is familiar to me, and she has now filed suit against her own company alleging racial bias.
So I’ll keep an eye on what these defendants and other companies do. Actions speak louder than words. I don’t think that shareholder derivative suits are necessarily the answer, but at least they may prompt more companies to have meaningful conversations that go beyond hashtag activism.
August 14, 2020 in Ann Lipton, Compliance, Consulting, Corporate Governance, Corporate Personality, Corporations, CSR, Current Affairs, Delaware, Financial Markets, Management, Marcia Narine Weldon, Shareholders, Stefan J. Padfield | Permalink | Comments (0)
Sunday, August 2, 2020
Greetings from SEALS (virtually). I've just finished sitting in on the last of several excellent panels on online teaching. Below are tips from the panelists, some of my own lessons learned, and key takeaways from the excellent book Small Teaching Online. For more of the foundations of online teaching see Part I, Part II, Part III, and Part IV.
- Have a class zero- you and students can record an introduction of themselves, pets, hobbies, skills, talents etc. Make sure you’re smiling and conveying your excitement in the video about the class.
- You can also have a class zero where you spend 5 minutes on Zoom with each student before the first day of class talking to them about any questions they have about the class, their tech etc.
- Let students know that this online format is not just a pandemic issue. Virtual offices are increasingly common in practice.
- Think about how to motivate students- what counts as a grade? Should you raise the class participation component and if so, how will you measure it? Will watching videos before class and participating in discussion boards count?
- Stand when recording your video lectures or teaching synchronously. Students prefer it. You can get a standing desk or go old school like me and use a pile of textbooks to create a lectern.
- Think about creating mnemonic devices through your intentional use of imagery. Use images appropriately so that the students can connect the image with what you want them to remember.
- Allow the students to do more prep before class. Let them find the rule and the law and use a problem method during synchronous sessions where the students work on hypotheticals.
- Make sure that you explain the learning objectives each week or each module so the students know what they are doing, why, and where it fits in the course. You can even add how the module or unit will help them in practice.
- You can get information to students with an announcement or email, but consider using a short video, especially if you want to explain an assignment and add more nuance. Make sure to add your personality in to the video. You can also use video to explain information that students find confusing. This way you can avoid answering the same questions over and over again.
- Use the subtitle or caption feature for your powerpoints when you are recording your asynchronous lecture.
- Consider having a transcript of your lecture videos or a detailed outline, especially if you don’t have subtitles or captions in your videos. I don’t write out an outline for my classes, but if you do, you can post that outline.
- Have some questions for the students to think about while they watch the asynchronous video lecture. I will use Feedback Fruits so students will answer questions while they watch the videos and won’t be able to continue watching until they answer the questions. You could be more low tech and provide them with the question in advance and require them to answer the questions before class in a no or low-stakes quiz.
- Students seem to prefer short, informal videos to highly produced videos. Students respond better to conversational tones and unedited videos. Of course, don’t just read the slides.
- Try to avoid talking about dates or current events in your videos, unless it’s really relevant. Make sure the videos can stand alone as an independent product and don’t refer back to other videos.
- Disclose your grading rubric early or have students develop a rubric based on what you have communicated. This will help you know whether they understand your materials and your grading standards.
- Learn from neuroscience- do ungraded short quizzes and spaced repetition before and after class. For a business associations class, for example, you can use old bar questions each week, which will get them familiar with those type of questions.
- Use some of what works in K-12 teaching about how to keep students engaged, where they empower the students to learn. We focus more on how we perform as teachers vs. how students learn. If you watch YouTube videos of K-12 teachers, you can learn a lot that will also apply to law students.
- Use non-graded events throughout the semester such as short essays or multiple choice so that they can see how they are doing. Do this anonymously and provide the answers or model answers.
- If your class is small enough, greet students by name when they come in the Zoom room.
- Start each synchronous class with a question in the chat- it can relate to the materials, something in the news, or pop culture etc. If you normally arrive early to the physical classroom, do the same on Zoom and recreate that casual conversation.
- Make sure to save the chat in Zoom so that you can refer to issues in the next class or you can send out an email or announcement to discuss what you may have missed in the class.
- If you have a TA, that person can monitor the chat for you while you're teaching.
- In the first week, think of creating an exercise that relates to what the students may do for the final exam. This may include multiples choice, a short essay etc.
- Have panels of students on call for certain parts of the class, just as you would in residential classes.
- Try peer-to-peer formative assessment through peer review and team-based learning. This will work better in an online than a residential setting. See my earlier posts for more information on TBL.
- Take a break in class if it’s more than an hour. Tell the students that they can use that time to take notes, talk with each other etc.
- Add humor to the course. Consider a contest for best virtual background but be mindful that some students may not have the bandwidth for this. If all of your students can do it, consider a “prize” for the best background.
- When you use breakout rooms, have a class document that students can fill out or download and then share the screen during the breakout rooms. While they can use a whiteboard in breakout groups, they can’t share their breakout room whiteboard in the main room. You can share using Google docs in Zoom. This may work better if students need to report back to the class.
- In class, reboot student attention with thumbs up, thumbs down, polls etc. Try to keep things moving every 10-15 minutes.
- Have students do a short reflection at the end of a unit to discuss what they learned or struggled with. Give them the choice of using video or written format.
- If your LMS allows it, have a conditional release system so students cant’t see certain content until they have reached a certain score or milestone with the materials.
- Use the discussion board feature for students to answer questions and then make sure that you answer within 24 hours.
- If you choose to use discussion board for substantive student submissions, make sure that you have a clear rubric, with word count requirements etc. Consider having students have a choice of questions to answer. You may decide that if a response does not meet the rubric, the student gets 0 points, so it’s all or nothing. You can also require students to post before they see other posts. If you have a very large class, you can divide them into groups so the students are only looking at a smaller group of posts.
- Think about providing feedback on assignments via audio or video, if your class is small enough. Many students find that this provides more of a connection to the professor.
- Early or midway through the semester, use Google forms, survey monkey, or another mechanisms for students to let you know anonymously what's working and what’s not. Ask them what you should start, stop, and continue doing.
- Send personal emails when a student misses class. Just asking if the student is ok and making sure s/he knows where to find the class recording, can further the sense of community and connection.
- At the end of the semester, have the students assess themselves. They can also discuss three takeaways from the course and how they plan to use it in practice.
Best of luck planning for the new semester. Stay safe!
Friday, July 24, 2020
Yesterday, I had the pleasure of moderating a panel of Black entrepreneurs sponsored by the Miami Finance Forum, a group of finance, investment management, banking, capital markets, private equity, venture capital, legal, accounting and related professionals. When every company and law firm was posting about Black Lives Matter and donating to various causes, my colleague Richard Montes de Oca, an MFF board member, decided that he wanted to do more than post a generic message. He and the MFF board decided to launch a series of webinars on Black entrepreneurship. The first panel featured Jamarlin Martin, who runs a digital media company and has a podcast; Brian Brackeen, GP of Lightship Capital and founder of Kairos, a facial recognition tech company; and Raoul Thomas, CEO of CGI Merchant Group, a real estate private equity group.
These panelists aren't the typical Black entrepreneurs. Here are some sobering statistics:
- Black-owned business get their initial financing through 44% cash; 15% family and friends; 9% line of credit; 7% unsecured loans; and 3% SBA loans;
- Between February and April 2020, 41% of Black-owned businesses, 33% of Latinx businesses, and 26% of Asian-owned businesses closed while 17% of White-owned business closed;
- As of 2019, the overwhelming majority of businesses in majority Black and Hispanic neighborhoods did not have enough cash on hand to pay for two weeks worth of bills;
- The Center for Responsible Lending noted that in April, 95% of Black-owned businesses were tiny companies with slim change of achieving loans in the initial rounds of the Paycheck Protection Program;
- Only 12% of Black and Hispanic business owners polled between April 30-May 12 had received the funding they requested from the stimulus program. In contrast half of all small business had received PPP funds in the same poll.
Because we only had an hour for the panel, we didn't cover as much as I would have liked on those statistics. Here's what we did discuss:
- the failure of boards of directors and companies to do meaningful work around diversity and inclusion- note next week, I will post about the spate of shareholder derivative actions filed against companies for false statements about diversity commitments;
- the perceptions of tokenism and "shallow, ambiguous" diversity initiatives;
- how to get business allies of all backgrounds;
- the need for more than trickle down initiatives where the people at the bottom of the corporation/society don't reap benefits;
- the fact that investing in Black venture capitalists does not mean that those Black VCs will invest in Black entrepreneurs and the need for more transparency and accountability;
- whether the Black middle class still exists and the responsibility of wealthier Black professionals to provide mentorship and resources;
- why it's easier for entrepreneurs to get investments for products vs. services, and a hack to convince VCs to invest in the service;
- whether a great team can make up for a so-so product when a VC hears a pitch;
- why there are so many obstacles to being a Black LGBTQ entrepreneur and how to turn it to an advantage when pitching; and
- whether reparations will actually help Black entrepreneurs and communities.
If you want to hear the answers to these questions, click here for access to the webinar. Stay safe and wear your masks!
July 24, 2020 in Corporations, CSR, Current Affairs, Entrepreneurship, Family Business, Management, Marcia Narine Weldon, Private Equity, Service, Shareholders, Technology, Venture Capital | Permalink | Comments (0)
Saturday, July 11, 2020
Greetings from Miami, Florida, COVID19 hotspot. Yesterday, 33% of those tested had a positive result. Although my university still plans to have some residential instruction as of the time of this writing, most of us are preparing to go fully online at some point. In Part I, Part II, and Part III, I provided perspectives from experts in learning. I'm still gathering that information.
This week, however, I spoke to the real experts -- students. Yesterday, I had the opportunity to hear from students studying business and human rights from all over the world courtesy of the Teaching Business and Human Rights Forum. I've also been talking to research assistants and other current and former students. Here's a summary of their conclusions:
- We know that Spring was hard for everyone and that everyone is still learning how to teach online. Do not be worried about making mistakes.
- Don't assume that we are all digital natives. Some of us are older students or not used to the technology that you have decided to use. Make sure that the interface is intuitive and use tech in fun and interesting ways. (One professor used Jeopardy online and students loved it).
- Be flexible with assignments. Many of us are dealing with health and financial issues and we will need extensions. Some students will be in different time zones if you're requiring group work. It's not business as usual.
- If you have teaching assistants, have them monitor the chat functions if you use it and have them pop into breakout rooms (if you're using Zoom). TAs can be very helpful, especially in large classes.
- Add a COVID component to the lessons if you can. It helps us make sense of things and provides real-world context to what we are doing.
- Offer breaks. Time moves much slower in an online class.
- Use guest speakers who wouldn't be able to visit class. It makes class more interesting and allows us to hear from thought leaders from around the world.
- Consider using Slack or other tools other than for communications and group work.
- Use screen sharing during synchronous classes and allow others to share when appropriate.
- Make use of the chat function during synchronous classes. It keeps our attention and makes sure that we are engaged.
- Do not just talk over powerpoint slides. Many students simply download the slides if they found that professors were reading the slides word for word without adding new content.
- Make sure the slides have enough information to be useful. Some professors put only a few words on a slide and this doesn't facilitate learning.
- Use breakout rooms often and appoint a reporter to inform the class of the room's conclusions. Make sure that everyone understand the assignment before sending students off to breakout rooms.
- Breakout rooms help build community and encourage shy students to speak more.
- Communicate rubrics for assignments clearly and often. Let us know exactly what you expect us to learn in each module. Make the objectives clear.
- Try to forecast what you're going to teach and do a summary at the end of the lesson, if possible.
- Require us to keep our cameras on. We will pay more attention.
- Keep us engaged with polls, quizzes, and surveys.
- Post slides in advance if you can for synchronous classes so that we can take better notes or annotate them.
- Consider a WhatsApp group or other communication mechanism to share newspaper articles or current events. Make it optional for students to participate.
- Consider having the class watch a movie in class instead of on our own. It helped build community.
- Please do not do a 6 hour lecture over powerpoint.
- Make sure to use powerpoint. Even a short lecture is hard to watch if it's just the professor sitting there.
- Pay special attention to your foreign students, who may be living in a different reality. Consider having small group office hours for them.
- Depending on the time of the day, invite students to have a coffee hour via Zoom.
- Make sure to have virtual office hours. Students will need to feel a connection outside of class. Also consider coming to class early and opening the Zoom (or other room) early and staying after class as you would in person.
- Videos should not be longer than 10 minutes.
- The length of the video matters less if the professor is engaging. Some of the most engaging professors in person look dead on camera. Their lack of enthusiasm for teaching online comes through.
- It's nice to have good looking slides, but if the professor isn't enthusiastic, it doesn't matter how good the slides look.
- Use whiteboards, graphs, or diagrams if possible if you're explaining complex topics. This is really important for visual learners. If you used to use the board in person, try to find a way to do it online.
- Group projects are ok as long as there is built in accountability. We are ok working with others but it's harder online and worse if everyone gets the same grade and there is no penalty for students who don't do any work.
- Show videos within videos for asynchronous and synchronous classes. You can stop the video in class and ask questions, just as you would if we were in person.
- Make sure to stop for questions regularly. Remember there's a lag when people unmute or as you look to see who is raising a hand.
- Ask for our feedback. We all want to make online learning work.
Next week, I will add more from the teaching experts. Everyone stay safe and healthy.
Friday, July 3, 2020
It seems that every day, more schools are announcing that they will re-open either totally or mostly online in the Fall. If you’re still debating whether opening face-to-face in the Fall is safe, I recommend that you read this compelling essay by my colleague, Bill Widen. I live in a COVID hotspot in Miami, Florida, and fortunately, I had already been assigned to teach online. Unlike many of you who may find out about your school’s plans at the end of July, I’ve already been focusing on upping my online game.
Last week, in Part II of this series, I promised to summarize what I have learned from some of my readings from Learning How to Learn, Small Teaching Online, and Online Learning and the Future of Legal Education. Alas, I haven’t even had time to look at them because I’ve been teaching two courses, watching webinars on teaching, and taking two online courses for my own non-legal certifications. But it wasn’t a waste of time because it allowed me to look at online learning from a student’s perspective. Next week, I’ll summarize the readings in the sources listed above, but this week, I’ll provide some insight from the experts and from my perspective as a student.
Visual (spacial) learners learn best by seeing
Auditory (aural) learners learn best by hearing
Reading/writing learners learn best by reading and writing
Kinesthetic (physical) learners learn best by moving and doing
I know there’s a lot of controversy on learning styles, but I believe that students do learn differently, and that we need to plan for multiple types of activities to accommodate for those differences. Accordingly, each year, I conduct an online survey before the semester starts to ask the students their learning style, among other things. The students appreciate my asking and it reminds me to use different teaching methods. According to the VARK site, teachers and students often have different styles and we tend to teach in the way that we like to learn. Teaching online will highlight the need to plan for the different learning styles as we compete with the distractions from home.
It’s also important to understand the difference between active and passive learning. In active learning, the student learns by doing. Students learn passively when they listen to lectures or read textbooks. Students engage in active learning when they are analyzing, defining, creating, and evaluating information. Students learn using both modalities, but as educators, we want them to retain the information. This learning pyramid provides a helpful illustration.
My university provided us with the following statistics, which look at active learning from a slightly different perspective, but still gets to the same conclusion – teachers need to focus more on active learning. Apparently, people remember:
10% of what they read- passive learning
20% of what they hear- passive learning
30% of what they see- passive learning
50% of what they see and hear- passive learning
70% of what they say and write- active learning
90% of what they do- active learning
My experiences as a learner and teacher over the past few weeks leads me to believe that learning styles and active learning really do make a difference. For example, even though I had some of the world’s experts as panelists over the past few weeks in my compliance and corporate governance online course, I found during my scans of the Zoom squares that students who weren’t asking questions often look distracted after a period of time. The more they interacted with the panelists, the more engaged the class was as a whole. Having students use the chat feature increased engagement with the speakers as well (just make sure to disable private chat). But even during the most interesting discussions, some students tended to drift away and were clearly doing other things online. On the other hand, when I did sessions with the same students using breakout groups or requiring them to act as board members in a mock meeting, their engagement level appeared higher, even though they always commented favorably on the guest speakers.
Similarly, when I’ve watched webinars or taken certification courses, I found that if I didn’t see a person’s face during a video at least part of the time, then I needed a more engaging presentation style and slides with embedded videos of people doing something. If I didn’t have activities to do to test my understanding or put in practice what I had learned, I quickly lost interest. Reading too much made my eyes glaze over, especially after a day of teaching and holding student meetings on Zoom. Zoom fatigue is real and we need to take that into account when designing our courses. Remember, we may be on Zoom for a few hours a day but our students will be on Zoom for many more hours with different professors using different teaching styles. If we thought they were exhausted after a day of face-to-face class, imagine how they will feel after a day on Zoom learning complex topics from teachers with varying degrees of online proficiency.
With that in mind, here are some things we should consider over the next few weeks:
- How do we break our modules down to chunks of learning activities? How do we tie those learning activities to our stated learning objectives? Even though it may seem like we’re dumbing it down, should we say “Read/Watch This Before Class” “Do This In Class” “Do This After Class” each week in the modules? I’ve learned that you can never make it too simple for students.
- How do we ensure that we have activities where students discover, discuss, and then do/demonstrate?
- Are we mixing things up in our synchronous class every 15-20 minutes with polls, breakout groups, or some other non-lecture activity?
- Are we using the tools that work in a synchronous, asynchronous, and combination environment such as team-based learning, peer review, retrieval practice, and asynchronous videos?
I use team-based learning by having students work in law firms throughout the semester on graded and ungraded assignments and then requiring them to evaluate themselves and each other on specific criteria. More formally, team-based learning can involve more complex features such as readiness assuredness testing, which I don’t do, so I can’t comment on the effectiveness. The Team-Based Learning Collaborative and InteDashboard both come highly recommended.
I have used peer review occasionally in live classes and on discussion boards for my transactional drafting course, but I plan to use it even more in the Fall, likely using Google docs. I’ve found that my students’ work product improves significantly after they’ve marked up someone else’s draft, and this corresponds with the learning pyramid assertion that students remember 75% of what they do and 90% of what they teach others. Other professors I know have used Peerceptiv, Eli Review, and other tools. I’ve watched demos and think they’re great, but I’m trying to keep things simple for myself this Fall.
Finally, I’ve found that polls and no-stakes quizzes are highly effective for keeping students engaged during class, especially in courses like Business Associations. I’ve used polls and test your understanding quizzes through Echo 360 in both synchronous and asynchronous class sessions. Requiring short answers in the Echo 360 quizzes ensures that the students aren’t just guessing. Using multiple choice questions shows me how many students are answering correctly and gives me an idea of where the knowledge gaps are. I also have a record by student of the number of questions they have answered correctly. The quizzes, which only count for class participation, also provide formative assessment, which the students really need in an online environment.
Students also really like polls. It wakes them up and gives me an idea of what they actually understand or think about the material. During class, I’ve tended to use Zoom polls or Echo 360, but in the Fall, I will use a variety of tools including Kahoot for polling and creating instant word clouds, Poll Everywhere, which has more features than Kahoot, and Mentimeter, which offers greater functionality than Zoom. Poll Everywhere has put together a chart comparing it to its competitors but the best way to determine what works for your teaching style and objectives is to test drive them yourself. I’ve been on webinars where presenters have used all four tools, and I liked them all. I will probably use them all during the semester, but no more than two different mechanisms during a synchronous class session. According to our instructional designers, students respond well when professors use one or more polling feature in a class session. Some of the tools require students to use their cell phones to participate and you may have concerns about that, but let’s face it, they may be on their phones anyway, especially if you don’t require them to keep cameras on, as I do.
I’ve now flooded you with information. Next week, the flooding continues. I’ll continue talking about student engagement focusing on evidence-based theories in learning and the do’s and don’ts of breakout rooms. If you have any suggestions or experiences with any of these tools, please leave your comment below.
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.
Monday, June 22, 2020
Thanks to all of our readers who were able to come to the National Business Law Scholars Conference (NBLSC) last Thursday and Friday. It was lovely to see so many of you there, even though it was somewhat sad that we could not be with each other in person. The conference enjoyed record participation, and we have received a lot of useful informal feedback about our virtual format from folks who attended.
I was the beneficiary of many "teaching moments" in hosting and participating in the NBLSC this year. I later will post on some of the outtakes from the NBLSC teaching panel (to which co-blogger Marcia Narine Weldon--who blogged about teaching on Friday--contributed meaningfully). Today, however, I am focusing my post on a few new things my fellow UT Law conference hosts and I learned about Zoom in the process of hosting the conference. A list follows.
- Although meeting participants should mute themselves on entering a meeting, it is best for a meeting host to set up the meeting so that all participants will be muted on entry, especially for large meetings. It can be challenging to track down and mute participants who join a meeting and bring background noise or conversations into a meeting that is already in progress.
- If you have set up a Zoom meeting with yourself as the host and you hand off the hosting to another meeting participant during the meeting, you may leave the meeting without ending the meeting for all. However, you cannot then initiate a second meeting as host until the first meeting has concluded. You cannot, in other words, host two concurrent meetings, even if you handed off hosting in the first meeting to someone else. See here. (Fix? Set up someone else as an alternative host of the first meeting. Also have that alternative host start the first meeting as host. Join the first meeting as a participant. Sign off any time and initiate the second meeting.)
- If you are hosting a meeting, consider assigning someone as a co-host so that, if your Internet connection fails, the meeting continues to proceed with the co-host as host until you can re-join. This was particularly welcome to me, since my power went out three separate times on Friday afternoon during conference sessions I was hosting.
- Have a telephone or data-enabled smart pad handy as a back-up connection device if you are hosting or participating in a Zoom meeting on a computer using the Zoom client. Although data rates may apply, you can easily reconnect using the Zoom app on your phone or smart pad if you lose your Internet connection. (This is how I reconnected those three times on Friday.)
- If the meeting host allows all participants to share screens at the outset of the meeting, if a presenter who is sharing slides drops out of the meeting because of, e.g., Internet hiccups, the presenter can immediately re-share the slides after re-joining the meeting (without having to be named as a host or co-host). A meeting host would not want to allow all participants to share screens, however, unless the participants are trusted.
- A host can kick a participant out of a meeting, but that participant can re-enter the meeting room unless the "Allow removed participants to rejoin" feature is disabled.
- A meeting host can report an aberrant user to Zoom if that feature ("Report participants to Zoom") is enabled in the host's settings.
- Some meeting participants like to communicate with other meeting participants privately through the chat feature of Zoom. See here. It approximates sitting next to (or close to) others in a physical room. If you want to allow this kind of background chatter, enable "Allow meeting participants to send a private 1:1 message to another participant" in your profile settings on Zoom.
- Although I did not use them for the NBLSC, meeting hosts should consider the desirability of using waiting rooms, password requirements, meeting locks and other security features, and breakout rooms to manage participants.
I am sure there is more I could say, but these were the main things I learned that were not necessarily things I had picked up in establishing and engaging Zoom meetings for classroom activities. While some of the above-listed items may be of limited utility in using Zoom to teach online (as opposed to using Zoom to host a two-day, 31-meeting conference), if you substitute "class" for "meeting" in the listed items, you can get a sense of how some of them may apply to class activities in general or in specific circumstances, too. In any event, i have come to the understanding that we all can benefit from knowing as much as possible about the technologies were are using as we continue to navigate the virtual conference and online teaching waters as business law professors.
Friday, June 19, 2020
If you're like me, you're wondering how you can improve your teaching after last Spring's foray into online learning. I wasn't nearly as traumatized as many of my colleagues because I had already taught Transactional Drafting online asynchronously for several semesters. This summer, I'm teaching two courses -- Transactional Drafting asynchronously and a hybrid course on Regulatory Compliance, Corporate Governance, and Sustainability. I'm making a list of tips based on my experience and will post about that in the future. In the meantime, I've started to think about how I can improve next semester when I will be teaching all of my courses online. Since I know that so many students had a mediocre to poor experience with emergency online teaching, I've spent a lot of time on webinars learning how to do better. This will be the first in a series of posts on what I'm learning on course design, learning styles, and best practices. But let's start with the basic questions to ask yourself as you're preparing for next semester.
First, think about whether you want to teach synchronously or not. If you're looking for maximum flexibility for both you and the students, then asynchronous teaching makes sense. If you're teaching solely asynchronously, then you need to consider how to make your videos and content as engaging as possible. You also have to do something to build community within the class and a rapport between you and the student. If you're thinking of doing a hybrid, perhaps using a flipped classroom, recognize that it will take longer to prepare than you would think. For my summer compliance course, I record videos on substantive legal issues, monitor discussion on the class discussion board, prepare questions for students to answer prior to class using Echo 360, and then review those answers all prior to teaching the 2-credit course live on Zoom. This requires substantially more time than normal class prep, but it's well worth it because we can use class time to do simulations or interact with guest speakers from all over the world. More about these issues will come in a future post.
Second, learn everything you can about the platforms you will use next semester so that you can master all of the features that will make your class more engaging. Even if your institution does not require you to use one platform, try to come to some consensus anyway. Students do not want to learn three different systems so do what you can to make sure that the platforms are uniform and intuitive for them. Then think of whether all of the tools you're already using can integrate with that platform. Our university is using Blackboard, Echo 360, and Zoom. The students will have one place for logon and access everything from there. Next, think about whether you want to have students use discussion boards to interact or maybe develop Slack or Microsoft Teams instead. Since many students are uncomfortable speaking in class on video, we will have to work harder to foster classroom discussion. Teams and Slack channels can help, and many students will already use them for internships or business purposes. The more intentional you are, the better an experience your students will have, even if it takes some time to determine what works for you. If you have a research assistant or student you can contact, find out which tools did and didn't work from their Spring experience. See if your university will survey students for feedback on online learning,
Third, think about whether you have the right equipment. Do you need a separate headset, webcam, or microphone? I actually don't use any of those even though I have a separate microphone. How stable is your internet? Think about whether you might need an upgraded modem or even your own mesh network. One thing I absolutely recommend is a ring light. There are hundreds of YouTube videos on how to light yourself properly using your household lamps. But, I've found that having a separate ring light makes my videos brighter and more professional looking.
Finally, while you're designing your course, make sure you're thinking of the Americans with Disabilities Act. At UM, we've been told to do the following for presentations:
- provide wording for links and avoid using “click here” for the links;
- use sans serif fonts for easy readability;
- use dark font colors on light backgrounds;
- avoid extremely bright colors as a background color;
- use one font throughout the site;
- avoid overuse of all CAPS, bold or italics;
- avoid underlining words, as the screen reader can mistake it for a navigation link;
- make sure that images are clear and optimized for efficient loading;
- limit the use of animated and blinking images text, or cursors because they can cause seizures for some people;
- make sure that audio file lengths are adequate to meet the goals of the activity without being too large to restrict users’ ability to download the file on computers with lower bandwidths;
- provide a written transcript with all audio files; and
- provide closed-captioning or has accompanying text-based scripts for all videos.
After you've thought through some of these baseline issues, you can then turn to making your content as interesting and accessible for your students as possible. Future posts will cover tips for effective presentations, tools to increase engagement, and other best practices. In the meantime, if you have any tips to share or areas you want covered, please comment below.
Monday, June 15, 2020
The full schedule for the 2020 National Business Law Scholars Conference, which is being hosted on Zoom Thursday and Friday of this week, is now available. You can find it here. If and as additional changes are necessary, we will re-post.
As is always the case, the conference includes folks presenting work in a variety of areas of business law. These traditional paper panels are the heart of the conference. In addition, as I noted in my post last week, we are including three plenary sessions--one on "Business Law in the COVID-19 Era," one reflecting on teaching business law in the current environment, and one on current bankruptcy law and practice issues. There is something for almost everyone in the business law space in the conference program.
I am pleased and proud to note that several of my fellow bloggers from the Business Law Prof Blog are participating in the conference this year. They include (in addition to me): Colleen Baker, Ben Edwards, Ann Lipton, and Marcia Narine Weldon. I hope many of you will join us for all or part of the program and offer comments to colleagues on and relating to their work.
Monday, April 13, 2020
This post again comes to us from friend-of-the BLPB Nadia B. Ahmad. Her offering is in the tradition of similar posts published by my co-bloggers in the past that focus on videos that can be used in teaching various topics relevant to business law. I remember this post, for example, by Marcia Narine Weldon on blockchain teaching resources. Again, thanks to Nadia for contributing to our knowledge and our blog. I hope that others will be encouraged to offer suggestions in the comments below about other helpful online video resources that they know about.
Below is a list of online video resources for business law related topics.
- Panic: The Untold Story of the 2008 Financial Crisis(1 hour, 35 minutes)
VICE on HBO looks at factors that led to the 2008 financial crisis and the efforts made by then-Treasury Secretary Henry Paulson, Federal Reserve Bank of New York President Timothy Geithner, and Federal Reserve Chair Ben Bernanke to save the United States from an economic collapse. The feature-length documentary explores the challenges these men faced, as well as the consequences of their decisions.
- To Catch a Trader
PBS Frontline correspondent Martin Smith goes inside the government’s ongoing, seven-year crackdown on insider trading, drawing on exclusively obtained video of hedge fund titan Steven A. Cohen, incriminating FBI wiretaps of other traders, and interviews with both Wall Street and Justice Department insiders.
- How to Illegally Profit From a Pandemic: Insider Trading! (LegalEagle’s Real Law Review) (20 minutes)
LegalEagle is designed for law students and gives them an insider’s view to the legal system.
- PanamaPapers – The Shady World of Offshore Companies(55 minutes)
For decades, presidents, drug smugglers and criminals have used a Panamanian law firm to hide their accounts and valuables. This is revealed in documents reviewed by media partners around the world, including NDR and WDR. A total of 370 journalists from 78 countries evaluated around 11.5 million documents in the course of their reporting on the “PanamaPapers.” An anonymous source provided the data to Germany’s Süddeutsche Zeitung. The paper then shared it with the International Consortium of Investigative Journalists (ICIJ) and partners across the globe, including NDR and WDR.
Tuesday, December 24, 2019
Happy holidays! Billions of people around the world are celebrating Christmas or Hanukah right now. Perhaps you’re even reading this post on a brand new Apple Ipad, a Microsoft Surface, or a Dell Computer. Maybe you found this post via a Google search. If you use a product manufactured by any of those companies or drive a Tesla, then this post is for you. Last week, a nonprofit organization filed the first lawsuit against the world’s biggest tech companies alleging that they are complicit in child trafficking and deaths in the cobalt mines of the Democratic Republic of Congo. Dodd-Frank §1502 and the upcoming EU Conflict Minerals Regulation, which goes into effect in 2021, both require companies to disclose the efforts they have made to track and trace "conflict minerals" -- tin, tungsten, tantalum, and gold from the DRC and surrounding countries. DRC is one of the poorest nations in the world per capita but has an estimated $25 trillion in mineral reserves (including 65% of the world's cobalt). Armed militia use rape and violence as a weapon of war in part so that they control the mineral wealth. The EU and US regulators believe that consumers might make different purchasing decisions if they knew whether companies source their minerals ethically. The EU legislation, notably, does not limit the geography to the DRC, but instead focuses on conflict zones around the world.
If you’ve read my posts before, then you know that I have written repeatedly about the DRC and conflict minerals. After visiting DRC for a research trip in 2011, I wrote a law review article and co-filed an amicus brief during the §1502 litigation arguing that the law would not help people on the ground. I have also blogged here about legislation to end the rule, here about the EU's version of the rule, and here about the differences between the EU and US rule. Because of the law and pressure from activists and socially-responsible investors, companies, including the defendants, have filed disclosures, joined voluntary task forces to clean up supply chains, and responded to shareholder proposals regarding conflict minerals for years. I will have more on those initiatives in my next post. Interestingly, cobalt, the subject of the new litigation, is not a “conflict mineral” under either the U.S. or E.U. regulation, although, based on the rationale behind enacting Dodd-Frank §1502, perhaps it should have been. Nonetheless, in all of my research, I never came across any legislative history or materials discussing why cobalt was excluded.
The litigation makes some startling claims, but having been to the DRC, I’m not surprised. I’ve seen children who should have been in school, but could not afford to attend, digging for minerals with shovels and panning for gold in rivers. Although I was not allowed in the mines during my visit because of a massacre in the village the night before, I could still see child laborers on the side of the road mining. If you think mining is dangerous here in the U.S., imagine what it’s like in a poor country with a corrupt government dependent on income from multinationals.
The seventy-nine page class action Complaint was filed filed in federal court in the District of Columbia on behalf of thirteen children claiming: (1) a violation of the Trafficking Victims Protection Reauthorization Act of 2008; (2) unjust enrichment; (3) negligent supervision; and (4) intentional infliction of emotional distress. I’ve listed some excerpts from the Complaint below (hyperlinks added):
Defendants Apple, Alphabet, Dell, Microsoft, and Tesla are knowingly benefiting from and providing substantial support to this “artisanal” mining system in the DRC. Defendants know and have known for a significant period of time the reality that DRC’s cobalt mining sector is dependent upon children, with males performing the most hazardous work in the primitive cobalt mines, including tunnel digging. These boys are working under stone age conditions for paltry wages and at immense personal risk to provide cobalt that is essential to the so-called “high tech” sector, dominated by Defendants and other companies. For the avoidance of doubt, every smartphone, tablet, laptop, electric vehicle, or other device containing a lithium-ion rechargeable battery requires cobalt in order to recharge. Put simply, the hundreds of billions of dollars generated by the Defendants each year would not be possible without cobalt mined in the DRC….
Plaintiffs herein are representative of the child cobalt miners, some as young as six years of age, who work in exceedingly harsh, hazardous, and toxic conditions that are on the extreme end of “the worst forms of child labor” prohibited by ILO Convention No. 182. Some of the child miners are also trafficked. Plaintiffs and the other child miners producing cobalt for Defendants Apple, Alphabet, Dell, Microsoft, and Tesla typically earn 2-3 U.S. dollars per day and, remarkably, in many cases even less than that, as they perform backbreaking and hazardous work that will likely kill or maim them. Based on indisputable research, cobalt mined in the DRC is listed on the U.S. Department of Labor’s International Labor Affairs Bureau’s List of Goods Produced with Forced and Child Labor.
When I mentioned above that I wasn’t surprised about the allegations, I mean that I wasn’t surprised that the injuries and deaths occur based on what I saw during my visit to DRC. I am surprised that companies that must perform due diligence in their supply chains for conflict minerals don’t perform the same kind of due diligence in the cobalt mines. But maybe I shouldn't be surprised at all, given how many companies have stated that they cannot be sure of the origins of their minerals. In my next post, I will discuss what the companies say they are doing, what they are actually doing, and how the market has reacted to the litigation. What I do know for sure is that the Apple store at the mall nearest to me was so crowded that people could not get in. The mall also has a Tesla showroom and people were gearing up for test drives. Does that mean that consumers are not aware of the allegations? Or does that mean that they don’t care? I’ll discuss that in the next post as well.
Wishing you all a happy and healthy holiday season.
December 24, 2019 in Compliance, Corporate Personality, Corporations, CSR, Current Affairs, Ethics, Financial Markets, Human Rights, Litigation, Marcia Narine Weldon, Securities Regulation, Shareholders | Permalink | Comments (0)
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 firstname.lastname@example.org.
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)
Friday, August 23, 2019
I had planned to write about the Statement on the Purpose of a Corporation signed by 200 top CEOs. If you read this blog, you've likely read the coverage and the varying opinions. I'm still reading the various blog posts, statements by NGOs, and 10-Ks of some of the largest companies so that I can gather my thoughts. In the meantime, many of these same companies will be at the UN Forum on Business and Human Rights touting their records. I've been to the Forum several times, and it's worth the trip. If you're interested in joining over 2,000 people, including representatives from many of the signatories of the Statement, see below. You can register here:
The UN annual Forum on Business and Human Rights is the global platform for stock-taking and lesson-sharing on efforts to move the UN Guiding Principles on Business and Human Rights from paper to practice. As the world’s foremost gathering in this area, it provides a unique space for dialogue between governments, business, civil society, affected groups and international organizations on trends, challenges and good practices in preventing and addressing business-related human rights impacts. The first Forum was held in 2012. It attracts more than 2,000 experts, practitioners and leaders for three days of an action- and solution-oriented dialogue.The Forum was established by the UN Human Rights Council in 2011 “to discuss trends and challenges in the implementation of the Guiding Principles and promote dialogue and cooperation on issues linked to business and human rights, including challenges faced in particular sectors, operational environments or in relation to specific rights or groups, as well as identifying good practices” (resolution 17/4, paragraph 12).
The Forum addresses all three pillars of the Guiding Principles:
- The State duty to protect against human rights abuses by third parties, including business, through appropriate policies, regulation and adjudication;
- The corporate responsibility to respect human rights, which means to avoid infringing on the rights of others and to address adverse impacts with which a business is involved; and
- The need for access to effective remedy for rights-holders when abuse has occurred, through both judicial and non-judicial grievance mechanisms
The Forum is guided and chaired by the UN Working Group on Business and Human Rights and organized by its Secretariat at the Office of the UN High Commissioner for Human Rights (OHCHR).
If you have any questions about the value of attending the Forum, feel free to reach out to me at email@example.com.
August 23, 2019 in Conferences, Corporate Personality, Corporations, CSR, Current Affairs, Human Rights, International Business, International Law, Marcia Narine Weldon, Shareholders, Social Enterprise | Permalink | Comments (0)
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.
Monday, August 5, 2019
I am just back from the 2019 Southeastern Association of Law Schools (SEALS) conference. I participated in several different kinds of activities this year. This post reports out on each.
I first served as a participant in a series of discussion groups tailored to provide information to aspiring law professors. The attendees included newly minted fellows and VAPs, mid-to-later-career lawyers/judges looking to switch to full-time law faculty (some already adjuncts or visitors), and (in general) law practitioners testing the waters for possible engagement with the Association of American Law Schools faculty recruitment process. SEALS has served selected prospective law professors with a specialized track of preparative programming for a number of years. This set of discussion groups represents an extension of that type of programming, on a more general informational level, to a wider audience of folks interested in careers in law teaching.
I also presented in a discussion group, sponsors by West Academic, on "Teaching to Engage." Steve Friesland of Elon Law moderated the session. I shared some of my "first class" and assessment simulations for business law doctrinal and experiential courses. I learned from many others who shared their own ways of engaging students. It was a rich discussion.
The anual SEALS "Supreme Court and Legislative Update: Business and Regulatory Issues" featured a presentation from me on a few cases and things to watch for from a legislative viewpoint. I was joined on the panel by several super-fun business and administrative law colleagues. One of them, Lou Virelli, posted a summary of the session on the SEALS Blog. You can find it here.
Michigan State law prof Carla Reyes's "New Scholar" presentation of her draft paper currently entitled "Autonomous Business Reality," was fascinating. I was proud to serve as her assigned mentor for this session. I hope I lived up to that role, considering she is a leader in law-and-technology research and I already cite to her work on blockchain technology! Humbling to be a mentor under those circumstances, for sure.
As part of the Free Speech Workshop, I related the history and current status of student free speech issues involving registered student organizations at The University of Tennessee, Knoxville, based on my experience as a faculty advisor to a controversial student organization on our campus. That presentation was part of a larger discussion group on campus free speech issues. My UT Law colleague David Wolitz was a co-discussant. Howard Wasserman of FIU Law summarized the session here.
Last--but certainly not least--I co-moderated/moderated two substantive law SEALS discussion groups.
First, John Anderson of Mississippi College Law (with only a bit of help from me) organized and moderated a session entitled "Insider Trading Stories," in which participants focused on the narratives underlying insider trading cases--known and unknown. This proved to be an incredibly robust and diverse discussion, highlighting issues in insider trading theory, policy, and doctrine. Longer versions of some of the discussion group offerings will be presented at a symposium at UT Law in the fall, sponsored by the Tennessee Journal of Law and Policy (TJLP). The TJLP will publish the edited papers in a forthcoming volume. I was pleased to see BLPB co-blogger Marcia Narine Weldon in the room!
Second, I moderated a discussion group entitled "Benefit Corporation (or Not)? Establishing and Maintaining Social Impact Business Firms." The program description of the session 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.
The final group pf participants included researchers/writers from the United Kingdom and Canada as well as the United States. BLPB co-blogger (and newly minted dean) Josh Fershee was among the group, and BLPB co-blogger Marcia Narine Weldon was again in attendance. The discussion was spirited and there were more than a few "aha" moments for me.
All-in-all, a busy--but enlightening--week's work.
It soon will be time to propose programs for the 2020 SEALS annual meeting, to be held in Fort Lauderdale, Florida. The date of the conference is likely to be moved up to start on July 30 to accommodate the very early (and getting earlier) starts for schools in the Southeastern United States (and probably elsewhere, too). If you have business law program ideas or would like to moderate or participate in a business law program, please contact me by email. I find that this conference (especially the discussion groups) helps to energize my teaching and scholarship in meaningful ways. Perhaps you also would find this a great place to jumpstart the academic 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.
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 10, 2019
Join me in Miami, June 26-28.
June 26-28, 2019
Managing Compliance Across Borders is a program for world-wide compliance, risk and audit professionals to discuss current developments and hot topics (e.g. cybersecurity, data protection, privacy, data analytics, regulation, FCPA and more) affecting compliance practice in the U.S., Canada, Europe, and Latin America. Learn more
See a Snapshot: Who Will Be There?
Learn More: Visit the website for updated speaker information, schedule and topic details.
This program is designed and presented in collaboration with our partner in Switzerland
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)
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.
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.