Sunday, August 4, 2019
In the next few weeks, I’ll be blogging about my article, “Incomplete Clearinghouse Mandates,” forthcoming in the American Business Law Journal (ABLJ). The ABLJ is a triple-blind peer review journal published quarterly “on behalf of the Academy of Legal Studies in Business (ALSB).” Its articles explore a range of business and corporate law topics, and it is a great resource for academics, industry professionals, and others. Its “mission is to publish only top quality law review articles that make a scholarly contribution to all areas of law that impact business theory and practice…[and it] search[es] for those articles that articulate a novel research question and make a meaningful contribution directly relevant to scholars and practitioners of business law.”
One aspect of publishing with the ABLJ that I found invaluable was the reviewers’ feedback. Their comments were tremendously helpful, and addressing issues in my article that they highlighted substantially increased the quality of the finished product. I want to send a big THANK YOU to those reviewers!
I’m also an ad hoc reviewer for the ABLJ. This too has been a very worthwhile experience. Just as interviewing others can improve your interviewing abilities, reviewing the articles of others can improve your writing. Most importantly, however, reviewing the work of other faculty also writing in the business and corporate law areas helps promote a vibrant, scholarship community. Interested in helping to advance the business and corporate law research community? Contact the ABLJ’s Managing Editor, Gideon Mark, who recently shared the following with me:
In order to ensure that the American Business Law Journal can continue to provide high-quality feedback on submitted manuscripts through its triple-blind peer review process, the Journal seeks to expand its pool of reviewers. If you are interested in reviewing for the ABLJ, simply e-mail the Managing Editor: Gideon Mark, email@example.com. Please include your contact information (preferred e-mail address and phone number) and identify the subject areas in which you wish to review (e.g., securities, IP, antitrust, compliance, etc.).
Note: italics removed from first quote.
This just in from Adrienne D. Davis, Vice Provost. William M. Van Cleve Professor of Law, and Director of the Center for the Study of Race, Ethnicity & Equity at Washington University in St. Louis:
WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2020. We are particularly interested in corporate & securities law and constitutional law. Candidates must have at a minimum a JD, a PhD, or the equivalent in a related field. In addition, candidates should have strong scholarly potential and a commitment to excellence in teaching. Duties will include teaching assigned courses, researching and publishing scholarly work, advising students, and participating in law school and university service. Diversity and inclusion are core values at Washington University, and strong candidates will demonstrate the ability to create inclusive classrooms and environments in which all students can learn and thrive. The committee will be reviewing applications submitted through the AALS Faculty Appointments Register, but we are willing to consider materials outside of the FAR process.
Although we have no deadline, applications will have the best chance of full consideration if we receive them by August 19, 2019. Application materials should include a cover letter, a resume which includes at least three references, a list of publications, and up to three pieces of scholarly work. Please submit materials to Professor Susan Appleton, Chair of the Faculty Appointments Committee, Washington University School of Law, by emailing them to firstname.lastname@example.org.
Washington University in St. Louis is committed to the principles and practices of equal employment opportunity and especially encourages applications by those underrepresented in their academic fields. It is the University’s policy to recruit, hire, train, and promote without regard to race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status, disability, or genetic information.
Adrienne notes that she is on the committee, which is being chaired by Susan Appleton.
Saturday, August 3, 2019
I often think about this Wall Street Journal article from 2015 about Mylan and its reincorporation to the Netherlands:
At a heated meeting with Mylan NV’s executive team in a Manhattan conference room in May, several investors complained about the drug maker’s resistance to a $40 billion takeover proposal from Teva Pharmaceutical Industries Ltd.
Executive Chairman Robert Coury leaned across the table and retorted, in language laced with expletives, “This is a stakeholder company, not a shareholder company,” according to multiple attendees, meaning his constituents went beyond investors and he wasn’t obligated to agree to a tie-up. Mr. Coury got his way….
Mylan’s resistance to Teva’s proposal was aided by an acquisition that moved the company’s legal home in February from Pennsylvania to the Netherlands—part of the wave of tax-trimming “inversion” transactions that swept American business last year. Mylan, whose senior management remain based in Pennsylvania, gained not just tax savings, but a Dutch corporate rule book that gives companies more levers to resist takeovers….
Dutch policy makers have spent the past decade touting the benefits of Dutch law to global corporations as part of an effort to turn the Netherlands into a management-friendly bastion.
The article’s a bit circumspect about it, but I have always imagined Coury saying something like, “It’s stakeholder, b---,” as he refused to consider Teva’s offer. This, of course, it a lot like Martin Lipton’s longstanding advocacy for a “stakeholder” orientation, from the days of Unocal – when, at his urging, the Delaware Supreme Court held that employee welfare was an appropriate consideration in a takeover battle (before it retconned its own holding the next year in Revlon) – extending to today’s exhortations that corporate managers should protect stakeholder interests. All the right buzzwords of corporate social responsibility and ESG are there, but the fairly transparent endgame is to make boards less accountable to shareholders, not more accountable to other constituencies.
Anyhoo, I mention all of this because it’s the first thing that occurred to me when the news broke about Pfizer’s new combination with Mylan. Pfizer will spinoff its Upjohn unit to combine it with Mylan, and shareholders of both Mylan and Pfizer will receive stock in the new company. Significantly, the combined entity will incorporate in Delaware, thus removing some of the insulation that Coury has enjoyed over the past few years (despite his intention, described in the above-linked article, to maintain his role as Executive Chair).
Given Mylan’s poor performance recently – and associated shareholder restiveness – perhaps this move was inevitable. As I previously noted in the case of Netflix, it seems like public companies can only wall off their shareholders for so long, especially as performance declines – which is exactly when shareholders are going to want to flex their muscles.
Friday, August 2, 2019
Later today, the students in my nine-week online Transactional Lawyering: Drafting and Negotiating Contracts Course will breathe a sigh of relief. They will submit their final contracts, and their work will be done. They can now start reading for their Fall classes knowing that they have completed the work for their required writing credit. My work, on the other hand, won’t end for quite a while. Although this post will discuss teaching an online course, much of my advice would work for a live, in person class as well.
If you’ve ever taught a transactional drafting course, you know that’s a lot of work. You are in a seemingly never ending cycle of developing engaging content, teaching the material, answering questions, reviewing drafts, and grading the final product. Like any writing course, you’re in constant editing and feedback mode with the students.
If you’ve ever taught an online course, you know how much work it can be. I taught asynchronously, meaning I uploaded materials and the students had a specific time within which to complete assignments, typically one week or more. Fortunately, I had help from the University of Miami’s instructional design team, otherwise, I would likely have been a disaster. They provided me with a template for each module, which forced me to really think through the objectives for each class session, not just the course as a whole. In my traditional courses I have learning objectives, but I have never gone into so much detail either in my head or in writing about what I wanted the student to get out of each individual class.
Teaching a drafting course online was much more work than I expected, but I can’t wait to do it again. If you’re thinking about it, learn from my travails and triumphs. First, here are my suggested “Do’s”:
- Find a way to build community: I wanted to ensure that students felt connected to me. I scripted a welcome video and the instructional design team filmed and edited it. This way students saw my face. I wanted the students to see each other as well, so I required them to film a 2-minute introductory video of themselves and upload it so that students could “see” their classmates. Students then commented on their peers’ videos welcoming them to the class. I did short videos for most of the modules, but these did not always show my face. No video was more than 10 minutes long because apparently today’s students can’t pay attention for too much longer than that.
- Have students work in groups (at first): I divided the 16 students into 4 law firms based in part on what I saw in their videos. I wanted some diversity of gender, race, and experience in the groups. Students drafted a law firm agreement outlining how they would interact with each other, meet deadlines, and resolve disputes. They also picked a firm name and managing partner. They assessed themselves and each other as group members based on criteria that I provided. The group work minimized the amount of feedback that I had to provide. As a group, they drafted the law firm agreement, a client engagement letter, and worked on a short contract. Some assignments were graded and some were ungraded. The group work counted for 10% of the grade. This percentage wasn’t enough of the grade to cause panic, and the team assessment ensured that they didn’t slack off and benefit from their peers’ hard work.
- Mix it up: For each class, I had students review a presentation on Echo 360. Often, they answered questions that I posed in the presentation or did exercises from Tina Stark’s contract drafting book. On other occasions, they posted responses to prompts on the discussion boards and commented (constructively) on other responses, citing the rule or principle that buttressed their position.
- Make them keep track of their time and do a bill: Every lawyer hates tracking time, but it’s a necessity. I tell the students that they’ll thank me later. Each student, even on group assignments had to track their time and turn in a bill. This helped me gauge how the groups and students compared to each other. I also knew which student worked on which parts of the contracts.
- Let them negotiate: After the group work portion of the course ended,the students negotiated the terms of their final contract using a set of secret facts. I required them to develop and turn in a negotiation strategy using materials and videos that I put together. Armed with their BATNAs, WATNAs, and ZOPAs, I told them to spend no more than one hour negotiating. I required them to film their negotiations, upload them, and send them to me. They then worked on individual term sheets (for a grade). After the negotiations ended and I had received all term sheets, I released the secret facts and had the students assess themselves and their opposing counsel on their negotiation skills and tactics. I also provided feedback to each student on their negotiation performance and term sheets.
- Require them to communicate with the client:I required a 1-2 page client cover memo or email for almost every assignment focusing on tone, language, use of legalese, etc. In my comments, I explained the importance of this type of legal writing and of tailoring the language to different types of business clients. When they worked on NDAs, I reminded that them that client may never actually read the contract, so they needed to ensure that the cover memo was sufficiently detailed to provide material information without being overwhelming.
- Make them teach: They say that when you teach, you learn twice. I required the each student to develop a 5-7 minute video on an assigned topic. Each student “presented” to either a group of lay/business people or a group of junior associates attending a CLE. They then had to write a blog post of between 750-1000 words. I required students to watch each other’s videos and comment as either a business person or a junior lawyer. This provided a review of the class for the viewers. This assignment counted for 10% of the grade, but as an extra incentive to take the assignment seriously, the student with the “best” video received an extra week to turn in the joint final contract, meaning that the opposing counsel also benefitted. FYI, I was generally blown away by the videos.
- Allow them to use precedents and then instruct them on the limitations: Many of the students had never seen an NDA, and I allowed them to use precedents. Most were surprised by how many comments I had on their final products, especially since many of the precedents came from big firms. This was a valuable lesson for them on precision and the dangers of blind cutting and pasting.
- Make them redline and draft a contract with opposing counsel:The final assignment required them to draft a contract based on their negotiated terms. They soon realized that they had to do additional negotiation because some of the terms did not make sense once they started to memorialize them.
- Have office hours and use video conferencing:I practically had to beg the students to have office hours with me. They had no problem emailing with questions, but generally didn’t utilize my office hours, which were incredibly flexible. I offered online and in person hours, but only two students met with me during the semester outside of the live mandatory office hours. I had a mandatory live grading session by video to discuss their NDAs, their upcoming negotiations, and any questions they had about the course. During that live grading session, I acted as a partner in their law firm and then stepped into professor role.
What didn’t work as well? As you can imagine, to do the job correctly, I had a LOT of work to do. I clearly gave too much work over a nine-week period, because I know much work I had to do to give them feedback. I just wanted them to be armed with the skills they will need in the real world, but I overdid it. And this meant that sometimes I did not meet my own deadlines for getting feedback to them. Truthfully, I imposed some of that burden on myself. I offered students the chance to turn in drafts of almost every assignment for feedback. About 25-30 percent of the students took me up on that offer, but every week, I emailed all of the students with tips to improve based on the trends that I saw. In retrospect, I would give fewer assignments over a longer period of time, and would better utilize the discussion boards to foster that sense of live class discussion.
After all of that, I’m gearing up to do it again for the Fall, this time over a 15-week period. Even though I will have more time, both I and the students will have other classes. I’m also teaching business associations and legal writing, and the students will have their own classes, jobs, law reviews, and extracurricular activities to contend with.
If you have any questions or tips, leave them below or email me at email@example.com. I plan to learn more about course development at the University of Denver hybrid/online learning conference on September 26th. I’ll update this post after that conference. In the meantime, this weekend, I’ll be retooling my syllabus based on my summer experience and what I’ve learned this week at SEALS. Correction, I’ll retool in between grading the joint contracts.
Thursday, August 1, 2019
Villanova University Charles Widger School of Law and the John F. Scarpa Center for Law and Entrepreneurship are pleased to host the Nineteenth Annual Meeting of the Midwestern Law & Economics Association (MLEA) October 18-19, 2019 in Villanova, Pennsylvania. Presentations will begin Friday morning and end late afternoon on Saturday.
Villanova invites participants from across the nation (not just the Midwest) and abroad. Papers can be on any topic that touches on law and economics. This includes, for example, papers with empirical analysis and economic modeling, as well as papers that address legal doctrine or theory that have been informed by economic thought. To apply, submit a paper or abstract to Tammi Etheridge (Tammi.Etheridge@law.villanova.edu) no later than 4:00 pm EST on Friday, August 9, 2019.
There are no registration or membership fees. Participants will finance their own travel and hotel costs. Please register at https://app.smartsheet.com/b/form/c993420b5e284ac2b073d7931ccf9725. A block of rooms at The Radnor Hotel has been reserved for conference participants at a rate of $165/night (excluding tax). You can book by calling the hotel directly at (610) 688-5800. Use Group ID “Midwestern Law and Economics Conference” to receive the special conference rate. You will need to reserve your room by September 16, 2019 to receive this conference rate.
Wednesday, July 31, 2019
"Economists are more or less unanimous in calling rent control destructive. The only short-term winners are people who’ve already locked in.... but wait until neighboring apartments deteriorate ...." #corpgov https://t.co/VzAQ8iTzC5— Stefan Padfield (@ProfPadfield) July 28, 2019
"decades of imperialism, censorship, and torture; the Gulag archipelago, reeducation camps designed to eradicate the victim's entire personality, and the systematic industrial slaughter of 100 million people (and still counting in North Korea, China, and Cuba)" #corpgov https://t.co/RtUZZnWrnC— Stefan Padfield (@ProfPadfield) July 28, 2019
"In 2018, Siemens and eight partners, including NXP, announced their participation in an initiative known as the Charter of Trust, which provides a set of common principles designed to reduce cyber-risk broadly." https://t.co/NcFF1aug1o #corpgov— Stefan Padfield (@ProfPadfield) July 25, 2019
2/2 SEC Commissioner Hester Peirce "faulted the commission’s staff for abusing tools like 'no-action letters' and 'guidance' to create 'secret law,' free from judicial or legislative review." https://t.co/JrFlgiuPvJ #corpgov— Stefan Padfield (@ProfPadfield) July 25, 2019
Tuesday, July 30, 2019
University of Georgia, Terry College of Business Assistant or Associate Professor of Legal Studies Department of ILSRE
University of Georgia, Terry College of Business Assistant or Associate Professor of Legal Studies Department of ILSRE
The Department of Insurance, Legal Studies and Real Estate in the Terry College of Business at The University of Georgia invites applications for a full-time tenure-track or tenured faculty position of Legal Studies at the assistant or associate professor level, beginning Fall 2020.
Candidates must hold a juris doctorate or equivalent degree. For appointment at the assistant professor rank, strong communication skills and demonstrated potential for excellent teaching and high quality research is preferred. For appointment as an associate professor, a research record commensurate with rank and demonstrated excellence in teaching legal studies at the graduate and/or undergraduate level also are required. For information regarding the requirements for each faculty rank, please see the University of Georgia Guidelines for Appointment, Promotion & Tenure (https://provost.uga.edu/_resources/documents/UGA_Guidelines_for_APT_4_2017_online.pdf) and the Promotion & Tenure guidelines for the Terry College of Business (https://provost.uga.edu/_resources/documents/Business_2015.pdf). To be eligible for tenure on appointment, candidates must be appointed as an associate professor, have been tenured at a prior institution, and bring a demonstrably national reputation to the institution. Candidates must be approved for tenure upon appointment before hire.
Participation in service activities appropriate to the rank is expected. Salary is competitive and commensurate with qualifications.
Applications received by September 20, 2019, are assured of consideration; however, applications will continue to be accepted until the position is filled. Interested candidates should upload a cover letter, a full vitae, and contact information for three references (including email addresses) to http://www.ugajobsearch.com/postings/106535. The department will reach out to your references at the appropriate time in the process. No additional materials will be considered. Applications submitted in other ways will not be considered.
The University of Georgia is located in Athens, Georgia. Georgia is well known for its quality of life with both outdoor and urban activities (www.georgia.gov). UGA is a land grant/sea grant institution located approximately 60 miles northeast of Atlanta (www.uga.edu).
The University of Georgia is an Equal Opportunity/Affirmative Action employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, national origin, ethnicity, age, genetic information, disability, gender identity, sexual orientation or protected veteran status. Persons needing accommodations or assistance with the accessibility of materials related to this search are encouraged to contact Central HR (firstname.lastname@example.org). Please do not contact the department or search committee with such requests.
I made a similar post on social media last night, but with the first bar exam of my time as a law school dean beginning this morning, I thought I post those thoughts here. To this taking this bar exam (and any future bar exam):
You have worked hard, now is the time for you to show what you know. I wish you success. As you get ready to sit for the exam, your preparation is done. But there are still things you can do to improve your odds. Here’s what I ask you to do when you take the #BarExam:
*Be thorough.* Answer every question, written and multiple choice. Leave nothing blank. Give yourself a chance.
*Be focused.* Pay attention to time. Don’t spend twenty-five minutes on one multiple choice question or fail to get to an essay. Spend no more than your allotted time for each question, give an answer, and move on. Come back if you have time after everything else is answered.
*Be relentless.* If you make a mistake, do your best to work around it. If you don’t know something, give it your best guess and move on. Don’t give up. Don’t walk away. Don’t quit. You can do this.
And last, but not least, try to remember that this exam does not define you. The results don’t make you good or bad. This test is not who you are. It is is simply a result. It’s an important one, and it can impact you. But don’t ever let it define you.
My thoughts and good wishes are with you.
Monday, July 29, 2019
For last year's Business Law Prof Blog symposium at UT Law, I spoke on issues relating to the representation of business firms classified or classifiable as social enterprises. Last September, I wrote a bit about my presentation here. The resulting essay, Lawyering for Social Enterprise, was recently posted to SSRN. The SSRN abstract follows.
Social enterprise and the related concepts of social entrepreneurship and impact investing are neither well defined nor well understood. As a result, entrepreneurs, investors, intermediaries, and agents, as well as their respective advisors, may be operating under different impressions or assumptions about what social enterprise is and have different ideas about how to best build and manage a sustainable social enterprise business. Moreover, the law governing social enterprises also is unclear and unpredictable in respects. This essay identifies two principal areas of uncertainty and demonstrates their capacity to generate lawyering challenges and related transaction costs around both entity formation and ongoing internal governance questions in social enterprises. Core to the professionalism issues are the professional responsibilities implicated in an attorney’s representation of social enterprise businesses.
To illuminate legal and professional responsibility issues relevant to representing social enterprises, this essay proceeds in four parts. First, using as its touchstone a publicly available categorization system, the essay defines and describes types of social enterprises, outlining three distinct business models. Then, in its following two parts, the essay focuses in on two different aspects of the legal representation of social enterprise businesses: choice of entity and management decision making. Finally, reflecting on these two aspects of representing social enterprises, the essay concludes with some general observations about lawyering in this specialized business context, emphasizing the importance of: a sensitivity to the various business models and related facts; knowledge of a complex and novel set of laws; well-practiced, contextual legal reasoning skills; and judgment borne of a deep understanding of the nature of social enterprise and of clients and their representatives working in that space.
I hope that this essay is relatable and valuable to both academics and practicing lawyers. Feedback is welcomed. So are comments.
Also, I will no doubt be talking more about aspects of this topic at a SEALS discussion group later this week entitled "Benefit Corporation (or Not)? Establishing and Maintaining Social Impact Business Firms," which I proposed for inclusion in this year's conference and for which I will serve as a moderator. The description of the discussion group is as follows:
As the benefit corporation form nears the end of its first decade of "life" as a legally recognized form of business association, it seems important to reflect on whether it has fulfilled its promise as a matter of legislative intent and public responsibility and service. This discussion group is designed to take on the challenge of engaging in that reflective process. The participating scholars include doctrinal and clinical faculty members who both favor and tend to recommend the benefit corporation form for social enterprises and those who disfavor or hesitate to recommend it.
As you can see from the SEALS program for the meeting, the participants represent both academics (doctrinal and clinical) and practitioners who care about social enterprise and entity formation. If you are at SEALS, please come and join us!
Sunday, July 28, 2019
When I first met co-blogger Haskell Murray at SEALSB, we talked about running. Last month, he shared stories of inspirational runners embodying toughness, self-discipline, humility, and perseverance. I loved his post. Yesterday at a family gathering, my sister ribbed me for telling everyone and anyone who would listen about one of the most inspirational books I’ve ever read: Running for My Life: One Lost Boy's Journey from the Killing Fields of Sudan to the Olympic Games. While running this morning with a friend, I found myself proving her point. And when I saw that three days ago, Another chapter in the amazing life story of the Bowerman Track Club’s Lopez Lomong had been written, I decided it was my turn to share with BLPB readers about one of the runners who most inspires me.
As a six-year-old, now two-time U.S. Olympian Lopez Lomong was taken from his mother’s arms by soldiers during a church service in Sudan. After several weeks, he and three older boys he calls his “angels” escaped from a rebel prison camp and ran towards what they thought was their village, Kimotong. Instead, they were running towards Kenya, where they encountered border guards who took the boys to the UN refugee camp, Kakuma. This would be the six-year-old’s home for the next ten years.
During the hardships of those years, soccer became a favorite activity and distraction. Though having an actual soccer ball was a rarity, having too many soccer players on the field was not. Consequently, the older boys solved this problem by making up a rule that one had to run Kakuma’s perimeter – a mere 30 kilometers or 18 miles – each day before being allowed on the field to play. The toughness, self-discipline, and perseverance Lomong practiced in these daily runs and during those difficult years helped develop the toughness, self-discipline, and perseverance needed by world-class athletes.
At sixteen, Lomong learned of a program that would give 3500 boys living in Kakuma the opportunity to move to the U.S. However, applicants had to write their story in English, a language Lomong hardly knew. His response: “I won’t let a little thing like that get in my way.” (p.61) This inspirational attitude - whether about running 18 miles, writing a letter in a barely known language, or a plethora of equally challenging circumstances – has been a constant in Lomong’s amazing life story.
As my sister would tell you, I could go on much more about Running for My Life and the inspiration it has provided to me. However, I’d love for BLPB readers to read the book themselves (or at least watch a YouTube clip). I’ll additionally share that Lomong was: among the 3500 boys selected; taken in by host-parents, Rob and Barbara Rogers, who lived in upstate New York, and would eventually host several additional youths from Sudan; the flag bearer for the U.S. delegation during his first Olympic games in 2008; and, a fall 2011 graduate of the W.A. Franke School of Business at Northern Arizona University.
Last summer after battling several years of injuries, Lomong’s characteristic perseverance, self-discipline, and grit once again paid off when he made History by Becoming First American to Win 1,500 and 10,000m Titles. And as I shared in the first paragraph of this post, he’s been on a roll ever since!
Lomong’s website mentions the words “excellence, sacrifice, dedication.” It’s perhaps another way of stating the qualities of Haskell’s inspirational runners. As impressive as his running, is Lomong's humility in seemingly seeing one of his most important responsibilities as also using his opportunities, talents, and success to promote the development of others through the 4 South Sudan project, whose mission is to Provide Clean Water, Education, Health Care, and Nutrition to the world's most vulnerable people in South Sudan. Lomong aspires to run in his third Olympics next summer. I’ll be rooting for him every step of the way!
This just in from Ellen Yee at Drake Law School:
POSITION ANNOUNCEMENT - DIRECTOR OF THE ENTREPRENEURIAL/TRANSACTIONAL LAW CLINIC AND ASSISTANT/ASSOCIATE/PROFESSOR OF LAW
DRAKE UNIVERSITY LAW SCHOOL invites applications for the position of Director of the Entrepreneurial/Transactional Law Clinic. The position may begin in either the Spring 2020 or Fall 2020 semester and will be a twelve-month position. The directorship will be annual or long-term contract depending on the candidate’s qualifications and preferences. Duties will include supervising and assessing Clinic students representing nonprofit organizations and emerging entrepreneurs. The Clinic primarily focuses on assisting startup businesses and nonprofits in underserved communities in Polk County, Iowa that are not able to afford retained counsel. In addition, graduate students and other researchers at Iowa State University provide another source of Clinical transactional cases, many of which include advanced issues involving tech transfers, capital structures, and software licensing. The Director will have the opportunity to build on the success of the existing clinic, which serves a vibrant, diverse community of innovators. In addition, there may be opportunities to teach doctrinal and experiential-learning courses depending on the law school’s curricular needs.
Candidates must possess a J.D. or comparable law degree and be admitted to, or able to satisfy the requirements for admission to the Iowa Bar. A distinguished record of clinical teaching or extensive practice-related experience, a demonstrated capacity for excellence in teaching, supervision and assessment, and service is preferred. At least three years of teaching and/or practice experience is also preferred.
Drake has long excelled in clinical education and is a pioneer in the area. Our six clinics provide students with an outstanding legal experience in Children’s Rights Law, Delinquency Law, Elder Law, General Civil Law, and Criminal Law. Housed in the state-of-the-art Neal and Bea Smith Law Center, the Legal Clinic is an integral part of the Law School program and is supported by a multi-million dollar endowment. The Law School is located in Des Moines, the capital of Iowa, a thriving metropolitan area of more than 600,000 people. Des Moines is consistently ranked in national surveys as one of the best places to live in the United States.
Drake University is an equal opportunity employer and actively seeks applicants who reflect the diversity of the nation. No applicant shall be discriminated against on the basis of race, color, national origin, creed, religion, age, disability, sex, gender identity, sexual orientation, genetic information or veteran status. Diversity is one of Drake’s core values and applicants need to demonstrate an ability to work with individuals and groups of diverse socioeconomic, cultural, sexual orientation, disability, and/or ethnic backgrounds.
Confidential review of applications will begin in August 2019. Applications (including a letter of interest, a complete CV, teaching evaluations (if available) and the names and addresses of at least three references) should be sent to Professor Ellen Yee, Chair, Faculty Appointments Committee, Drake University Law School, 2507 University Ave., Des Moines, IA 50311 or e-mail: email@example.com.
And this from Jill Engle at Penn State Law in University Park:
Penn State Law in University Park is conducting several searches for tenured or tenure-track faculty in the 2019-20 academic year. This is part of a multi-year strategic hiring plan, and we will consider both entry level and lateral candidates. Lateral candidates may be at the assistant, associate, or full professor levels.
One of our searches will consider candidates in all subject areas, but we have a particular interest in those with research or teaching interests in criminal procedure and business law (including both domestic and international business). In addition, Penn State Law will be making two interdisciplinary hires. The first is a joint hire with the Penn State Institutes of Energy and the Environment for a position in energy and/or environmental law. The second is a joint hire with Penn State’s Institute for CyberScience, College of Engineering, and School of International Affairs on law and big data; for this position, we will consider scholars, interested in any area of the law, who incorporate big data into their research.
Candidates must have a J.D., Ph.D., or equivalent degree, a distinguished academic record, and demonstrated potential to produce outstanding scholarship. Penn State Law will be attending the AALS faculty recruitment conference, and entry level candidates are strongly encouraged to participate in the AALS Faculty Appointments Register. Lateral candidates should submit a current CV, four letters of reference, teaching evaluations, and a draft work-in-progress to Appointments@pennstatelaw.psu.edu. Specific inquiries should be addressed to the chair of the Appointments Committee, Professor Sam Thompson, firstname.lastname@example.org.
Penn State Law is located on Penn State’s University Park, Pennsylvania campus. For more information, please visit our website at https://pennstatelaw.psu.edu/. Penn State is an equal opportunity, affirmative action employer and is committed to providing employment opportunities to all qualified applicants without regard to race, color, religion, age, sex, sexual orientation, gender identity, national origin, disability or protected veteran status.
Please pass on a link to all who may be interested!
Saturday, July 27, 2019
I’m intrigued by this unusual Section 11 decision out of the Third Circuit, Obasi Investment LTD v. Tibet Pharmaceuticals, Inc, 2019 WL 3294888 (3d Cir. 2019). A company called Tibet held an IPO, but the registration statement failed to identify financial troubles at its operating subsidiary. Eventually the subsidiary’s assets were seized, Tibet’s stock price plunged, and trading was halted.
A class of plaintiffs brought a Section 11 claim against, you know, everyone they could get their hands on, including two individual defendants: Hayden Zou and L. McCarthy Downs. Zou was a Tibet shareholder who had come up with the idea for an IPO in the first place, and approached Downs, who was a managing director for an investment bank called Anderson & Strudwick (“A&S”). A&S ended up underwriting the offering, and for reasons that are not explained, A&S agreed with Tibet that after the IPO, two A&S designees would serve as nonvoting Board observers for the foreseeable future. Those designees were Zou and Downs, and the registration statement explained that even without votes “they may nevertheless significantly influence the outcome of matters submitted to the Board of Directors for approval.”
When the plaintiffs sued, they argued that Zou and Downs were proper Section 11 defendants, because that statute imposes liability on “every person who, with his consent, is named in the registration statement as being or about to become a director, person performing similar functions, or partner.” 15 U.S.C. §77k(a)(3).
The Third Circuit, in a 2-1 split, held that Zou and Downs were not named in the registration statement as performing functions similar to those of directors.
And honestly this is sort of a stream of consciousness about the decision, which got very very long, so behind a cut it goes:
[More under the jump]
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)
Thursday, July 25, 2019
The AALS Employee Benefits and Executive Compensation Section has a call for papers touching on investment advice and retirement savings. There is so much going on on this front with the DOL getting ready to put its own gutted revamped fiduciary rule out, the new SEC Regulation Best Interest, and so many other things happening. Plus, with over 10,000 Boomers turning 65 each day, these issues will only get more and more attention in the years ahead.
Call for Papers
Section on Employee Benefits & Executive Compensation
2020 AALS Annual Meeting
January 2-6, 2020 – Washington, D.C.
The AALS Section on Employee Benefits and Executive Compensation is pleased to announce a Call for Papers for the section panel for the 2020 AALS Annual Meeting. The Employee Benefits and Executive Compensation section panel is scheduled from 3:30-5:15 p.m., January 2, 2020. The panel is graciously co-sponsored by the Sections on Aging and the Law, Employment Discrimination, Labor Relations and Employment Law, and Poverty Law.
The topic for this year’s Employee Benefits and Executive Compensation panel is:
The Road to Wellbeing: Navigating the Potholes to Lifetime Financial Security
Panel Description: Although traditional employer-provided retirement and health benefits provide a significant safety net during employment and beyond, many in the U.S. struggle to achieve a state of long-term financial and health stability. This panel brings together experts from diverse perspectives to address obstacles and possible solutions in the pursuit of individual wellbeing over time.
We welcome legal scholarship on any topic related to the panel topic, including employer-provided benefits, retirement security, Social Security, income disparity and poverty, and topics related to individual financial/investment advice and investor protections.
Eligibility: Full-time faculty of AALS member schools or non-member fee-paid schools (determined as of the submission deadline) are eligible to submit papers. For co-authored papers, both authors must satisfy the eligibility criteria.
Submission details and due dates: Please submit abstracts (250-1000 words) by September 15, 2019, in Microsoft Word format, by e-mail to Susan Cancelosi, email@example.com. Only one abstract may be submitted by any potential speaker. The subject line should read “2020 AALS Employee Benefits section CFP submission”. Final papers are due by November 30, 2019. Scholarship may be at any stage of the publication process, from work-in-progress to completed article; however, if an article has already been published, the publication date may not be before 2018.
By submitting an abstract for consideration, you agree to attend and present at the 2020 AALS Annual Meeting Employee Benefits and Executive Compensation section panel on January 2, 2020, 3:30-5:15 p.m., should your paper be selected for presentation.
Abstracts will be reviewed by members of the Executive Committee of the Section on Employee Benefits and Executive Compensation. Anyone selected to present will be notified by e-mail by September 26, 2019. All presenters, including anyone selected to present through this Call for Papers, are responsible for paying their own AALS annual meeting registration fee, hotel and travel expenses.
Any questions should be directed to Section Chair Susan Cancelosi, firstname.lastname@example.org.
Wednesday, July 24, 2019
In 2010, an Illinois court reviewed Delaware business law making the following observations:
With respect to a limited liability corporation, Delaware law states that “[u]nless otherwise provided in a limited liability company agreement, the management of a limited liability company shall be vested in its members....” 6 Del.C. § 18–402. Thus, pursuant to Delaware law, directors are generally provided with authority for managing the corporation and members are generally provided with authority for managing the limited liability company. The bankruptcy court therefore properly found that a member of a LLC would be an analogous position to a director of a corporation under Delaware law.
Longview Aluminum, L.L.C. v. Brandt, 431 B.R. 193, 197 (N.D. Ill. 2010), aff'd sub nom. In re Longview Aluminum, L.L.C., 657 F.3d 507 (7th Cir. 2011).
Well, initially, it must be noted that an LLC is not a corporation at all. As the quoted Delaware law observes, it is a “limited liability company.” Corporations and LLCs are distinct entities.
I’ll also take issue with adopting the bankruptcy court’s finding “that a member of an LLC would be an analogous position to a director of a corporation under Delaware law.” I will concede that a member of an LLCmaybe an analogous position to a director of a corporation under Delaware law, but that is not inherently true.
The Longview Aluminumcourt had determined that, “under Delaware law, a corporation generally must ‘be managed by or under the direction of a board of directors . . . .’” 8 Del. Code § 141. While that’s technically accurate, it understates that general nature of Delaware directors. Note that the statue is mandatory in nature (“shall”), and then provides limited changes:
The business and affairs of every corporation organized under this chapter shall be managed by or under the direction of a board of directors, except as may be otherwise provided in this chapter or in its certificate of incorporation. If any such provision is made in the certificate of incorporation, the powers and duties conferred or imposed upon the board of directors by this chapter shall be exercised or performed to such extent and by such person or persons as shall be provided in the certificate of incorporation.
8 Del. Code § 141(a).
Remember, the Longview Aluminumcourt stated that, “[w]ith respect to a limited liability corporation, Delaware law states that ‘[u]nless otherwise provided in a limited liability company agreement, the management of a limited liability company shall be vested in its members....’ 6 Del.C. § 18–402.” Id.
But Delaware LLC law provides:
“Unless otherwise provided in a limited liability company agreement, the management of a limited liability company shall be vested in its members in proportion to the then current percentage or other interest of members in the profits of the limited liability company owned by all of the members, the decision of members owning more than 50 percent of the said percentage or other interest in the profits controlling . . . .”
6 Del. Code § 18-402.
That’s different in structure than directors. Directors act as a body, usually with one vote per director. This default provision provides for a very different structure, providing that one member with over 50% of the interests is controlling. That’s not like a board at all. And furthermore, those members in charge of the entity may not have any fiduciary duties to the LLC. The Delaware LLC Act states:
“To the extent that, at law or in equity, a member or manager or other person has duties (including fiduciary duties) to a limited liability company or to another member or manager or to another person that is a party to or is otherwise bound by a limited liability company agreement, the member's or manager's or other person's duties may be expanded or restricted or eliminated by provisions in the limited liability company agreement . . . .” 6 Del. C. § 18-1101(c).
Corporate directors have some version of fiduciary duties. Again, a notable difference. It appears that the Longview Aluminumcourt (affirming the bankruptcy court) may have been right to extend the corporate director concept to the LLC managers in that case because of the structure of the LLC’s operating agreement. But the court went on to imply that a member of a LLC is“an analogous position to a director of a corporation under Delaware law.” That very much overstates things.
Why discuss this 2010-11 case at length now? Because this section was cited last week:
“[I]n referencing a director, Section 101(31)(B) was intended to refer to the party that “managed” the debtor corporation.” Longview Aluminum, L.L.C. v. Brandt, 431 B.R. 193, 197 (N.D. Ill. 2010) (citing 11 U.S.C. § 101(31)(B)). “With respect to a limited liability corporation, Delaware law states that ‘[u]nless otherwise provided in a limited liability company agreement, the management of a limited liability company shall be vested in its members ....” Id. (quoting 6 Del.C. § 18–402).
In re Licking River Mining, LLC, No. 14-10201, 2019 WL 2295680, at *41 (Bankr. E.D. Ky. July 19, 2019), as amended (July 19, 2019).
Fortunately, other than failing to correct the mistake of calling an LLC a corporation, the Licking River Miningseems to have gotten the outcome right. The court determined that a 25% member interest lacked control because all LLC “decisions were to be made either by a majority of the LLC interests or by the entity's managing member.”Id.Good call, and hopefully this case will clarify (and correct) any negative implications from the Longview Aluminum case. But even if it does, it gives longer life to an incorrect reference to LLCs and increases the likelihood it will be cited repeatedly.
Win some, lose some, I guess.
"Substantial technological innovation is required if ... the world [is] to come ... close to proposed emission reduction targets. Neither traditional federal support for R&D ... nor traditional command-and-control regulations are likely to spur sufficient innovation." #corpgov https://t.co/jQzTEWtY8k— Stefan Padfield (@ProfPadfield) July 22, 2019
"many ... of the behaviorists' findings are fragile and disappear when exposed to market discipline and the profit motive, which create incentives for participants to specialize and to learn to reduce their errors" Wright & Ginsburg, 106 Nw. U. L. Rev. 1033 (2012) #corpgov— Stefan Padfield (@ProfPadfield) July 20, 2019
Monday, July 22, 2019
Like co-blogger Joan Heminway, I felt it a great honor and pleasure to attend the second annual Women’s Leadership in Legal Academia Conference last week (thanks, Joan, for bringing it to my attention via the BLPB!). It was a fabulous two days – an opportunity to reconnect with colleagues from around the country, meet new ones, learn a ton, and participate in many highly-engaging discussions. And as a UVA JD/MBA, it was also a wonderful chance to return to C’ville, catch up with a few former professors, and buy a much needed new pair of running shoes (Nike outlet new since my time!).
I loved Joan’s “mini-workshop.” It really challenged teams of attendees to grapple with difficult scenarios (see yesterday’s post), provided valuable leadership insights, and reminded me of summer reading I want to do! During the workshop, Joan mentioned the book Emotional Intelligence. It’s been on my “must read” list for years. Overall, the scenarios brought to life the emotional savvy (and regulation) essential to great leadership, and left me with two overarching thoughts. First, in any situation, doing one’s best to understand the persons (including oneself!) and complexities involved is foundational to effective leadership. It is also hard because it demands a sustained focus on others, and lots of active listening. Second, and perhaps most important, giving people the benefit of the doubt – assuming the best of others – greatly assists conflict resolution. Yet this too can often be hard.
Additional takeaways on leadership from this and other workshops included, Leaders:
Put their people first, develop others, value everyone, and seek to build others up – “the best leaders bring out the best in people.”
Know themselves – their strengths AND weaknesses.
Lead by example.
Seek and value wisdom.
Demonstrate technical competency.
Exhibit trustworthiness, integrity, courage, and honesty.
Get the right things done.
Finally, while at the conference, random thoughts crossing my mind included: Extreme Ownership, a favorite book on leadership; The Power of Vulnerability, one of the most celebrated Ted Talks; and, “bloom where you’re planted,” a multifaceted phrase encouraging all to lead from where ever we are!
Sunday, July 21, 2019
Last Thursday and Friday, I had the honor and pleasure of joining a large group of women interested in law school leadership at the second annual Women's Leadership in Legal Academia conference. The two days provided many opportunities for education and inspiration. Four of my UT Law colleagues started off the conference with a workshop focused on microaggressions. My mini-workshop entitled "Leading from Where We Are" (picture above taken by fellow BLPB blogger Colleen Baker, who attended the session) followed.
The workshop extended my thoughts on leadership as a concept distinct from titles--thoughts I had touched on in an earlier blog post for the Leading as Lawyers blog. It also offered me the chance to describe an optimal organizational structure, with leaders at every key juncture. In introducing my panelists, I noted leadership attributes that I had observed in each and told a related/relevant story about our relationship. Then, we offered for discussion two hypothetical situations in which a faculty member is challenged to lead. In each case, we started with small group work and followed through with a report-out to the "committee of the whole." One of the hypotheticals involved a (potential) misunderstanding between the dean and the faculty, and the other related to a traumatic incident involving one or more students from one of your classes. The small group discussions yielded excellent thoughts for consideration in the larger group forum.
Among the observations? I will highlight just two here. First, that the way a faculty member handles a potentially divisive situation involving the dean and the faculty may depend on the dean's leadership style (dictatorial or collaborative, e.g.) and the level of mutual trust between the dean and the faculty. Also, in exploring the various ways in which a faculty member might address traumatic events known to the public (e.g., fires and floods) and those that are more private (e.g., a student death under unusual circumstances), we identified different levels of faculty comfort in addressing trauma in the classroom. There was especial discomfort in addressing individual, personal trauma.
Colleen or I may have more to say about the conference in future posts. I was thrilled with the creative energy generated by this panel. I am grateful to have had the opportunity to share and learn. What's more, organizing the session enabled me to reconnect with four fabulous leaders in legal academia and to meet many more. A total "win" for me.
Saturday, July 20, 2019
I’ve previously blogged in this space about Shari Redstone and her conflicts with the CBS board. Last week, New York Magazine published this fascinating article about Shari Redstone’s corporate battles and her relationship with her father, Sumner Redstone. Shari Redstone refused to participate and thus much of it appears to have been drawn from other sources, but it was all new to me, and the anecdotes make for a fascinating – and eyebrow raising – read. Here’s a taste:
In retrospect, it took some chutzpah for Moonves to take Redstone to court, when as reporting would later show, he was busily covering up the sexual-assault allegations against him. Less than six months later, he was gone. So were Gifford and most of the other elder men on the board who’d backed Moonves. .... CBS and Viacom are once again talking about merging, though Redstone cannot be officially involved until negotiations are further along. If the merger goes through, as it well may this summer, she will have cemented her control of a $30 billion media kingdom.
And Moonves’s stunning downfall has given Redstone, for all her wealth, something she’s never had before: a narrative that justifies her own rise. The #MeToo movement has hardly had a richer target than CBS, with its board of mostly old white men who protected Moonves and shrugged off the company’s treatment of women. ...The new board of CBS is, like Viacom’s, majority female for the first time — and increasingly stacked with her allies. Women are being put in charge and on the air at CBS. And the face of the family controlling these companies was once the patriarch whose embarrasing sexual exploits were aired in court; now it’s his daughter.
As the excerpt indicates, the main theme of the article is that Shari Redstone - though an unlikely candidate for feminist hero - has battled a cadre of older men, many of whom disparaged or dismissed her apparently on the basis of gender, and has come out on top. She’s now firmly in control of both CBS and Viacom, and likely will fulfill her ambition to combine the two companies. A great piece to mull over.
Friday, July 19, 2019
When was the last time you sat in a classroom for 6 hours a day learning material that you weren’t sure that you would use on a daily basis for your job? I’m not talking about attending a CLE or an academic conference where you pick what you want to learn and from whom. I’m talking about taking notes, doing homework everyday, and being called on— you know, like we do with our students.
Well I’ve just finished this experience and it will change how I teach from now on. Since mid June, I’ve taken 90 hours of immersive Spanish classes—30 hours through weekend work at the University of Miami and 60 hours through Habla Ya in Panama for two weeks. I did this while teaching a transactional drafting course online (asynchronously), which required me to hold individual video conferences with my 16 students and markup and review drafts. I also worked on a time consuming project for a client. This was no vacation. At times, it was pure hell.
Here’s what I learned.
- The teacher really does matter. I often hear my students saying “I just can’t learn from Professor X.” I always thought it was a lame excuse from students who liked the “easier” or more entertaining professors (who weren’t always easier). Having had several teachers over the past few week, I now agree with the students. It’s not as though I didn’t want to learn, but there was a real difference between the teachers. You could tell who really loved teaching and who was doing it for the paycheck. It’s the difference between those who love teaching 1Ls or working with first year associates and those who have to do so to be able to teach their upper level course of choice or work with certain clients.
- Breaks are really important in long classes. When I teach classes of more than 1 hour 20 minutes, I give a short break. If students aren’t back from the break in time, I reserve the right to mark them absent. My classes in Panama had a break 2 hours in. By that time, my brain was fried and I was irritable. After the break, I was refreshed and ready to learn. That break was essential for me. Breaks are essential for our students too and not just so they can check Instagram on their phones.
- Listening to someone talk without having anything to look at is really hard. I’m a PowerPoint fan— I know many aren’t. I don’t use it as a crutch and my students find them helpful. The better Spanish teachers used a variety of visual aids and it really enhanced the learning. Those who didn’t lost our attention quickly and it impacted us to our detriment. What do our textbooks look like? How are we bringing the materials to life? It may be time to re-evaluate.
- There are differently learning styles. I’ve always believed that some people learn better by hearing, some by seeing, some by doing, and some through a combination. For this reason, I’ve always polled my students before class about learning style and have adapted, if possible. Generally, I tend to use a combination of tactics. I read somewhere that learning style theory had been debunked or at least had fallen out of fashion. However, I saw first hand how my classmates responded to different tasks based on how they were taught. The best teachers used all three methods and it kept us engaged.
- Make learning fun- Some of my best learning occurred during games in class. It broke the monotony and challenged us in different ways. When I’ve taught complex courses such as civil procedure and business associations, I’ve tried to be as entertaining as possible so that the students wanted to learn. For final exam review, I played jeopardy with them. Not only did they love it, but they really learned.
- Make it relevant. This seems obvious but bears repeating. I struggled in my Spanish class with some of the concepts and sentence structure because I knew I would almost never use it. I had 4 hours a day of group work with grammar and 2 hours a day of private lessons on legal and business Spanish. When I told them in advance that I wasn’t interested in criminal or immigration terms and that instead I wanted to learn business, legal, and compliance vocabulary, they made accommodations. When I told them that the very formal sentence structure they wanted me to master was good to know but I would never use it, they adapted. When we teach our students, we need them to have the foundation, of course, but we also need to think of the skills that our students will need in the real world. This is hard as we try to make sure students understand theory, can pass the bar, and have practical knowledge, but we owe it to them to try harder.
- Go slower. Spending 6 hours a day learning anything new is tough. We forget that we know the subject inside out and that the students do not. There were times that I wanted the teacher to slow down, but I didn’t ask. How many of our students feel the same way? My best teachers made it easy to ask questions. They also used formative assessment techniques to make sure we understood concepts before we moved on. Remember, our students are taking a number of classes and some are working. It may take more time for them to absorb concepts than we think.
- Don’t forget how much harder it is for students whose first language is not English. Not only did I learn grammar, I also learned complex legal terms that most people don’t use in any language. Discussing cybersecurity and EU data protection regulations in Spanish in hour 5 of a 6 hour day is grueling. I had to read in Spanish, translate in my head into English, and then translate back to Spanish to answer questions or explain concepts in role play exercises. My substance, vocabulary, and grammar had to be correct. I always knew in theory that it had to be harder for my foreign born students to learn in my classes, but I now have an even deeper appreciation.
- Give reasonable assignments. I had a lot of homework each night. Like many of our students, there were days that I did the work right before class. Sometimes we forget that our students have several classes, jobs, extracurricular activities, and personal lives. I got particularly frustrated when I did the homework (last minute) and certain teachers did not discuss it or even ask for it. I saw this as a lack of respect for my time. Our students likely feel the same way when we assign materials and never mention it again.
- Be flexible. When my teachers saw that certain things didn’t work, they made changes quickly. When I complained about some of the grammatical structure I had to learn, my teacher started to point out examples of what I had complained about in articles by CNN, Forbes etc. They put in context for me and I stopped complaining. We can’t always do that in our classrooms, but we should try to pivot when possible. Bring in current events. Let students know why what they are learning matters.
I plan to continue my immersion courses but have also started taking other courses online. I love watching other people teach. Being a life long learner will make me a much better teacher and I will then mold much better future lawyers. What have you learned from watching other people teach?