Monday, July 6, 2020
The title of this post is the title of a panel discussion I organized for the 2019 Business Law Prof Blog symposium, held back in September of last year. (Readers may recall that I posted on this session back at the time, under the same title.) The panel experience was indescribably satisfying for me. It represented one of those moments in life where one just feels so lucky . . . .
Why? Because it fulfilled a dream, of sorts, that I have had for quite a while. Here's the story.
About ten years ago, I ended up in a conversation with two of my beloved Tennessee Law colleagues while we were grabbing afternoon beverages. One of these colleagues is a tax geek; the other is a property guy. Somehow, we got into a discussion about mergers and acquisitions. I was asked how I would define a merger as a matter of corporate law, and part of my answer (that mergers are magic) got these two folks all riled up (in a professional, academic, nerdy way). The conversation included some passionate exchanges. It was an exhilerating experience.
I have remembered that exchange for all of these years, vowing to myself that some day, I would work on publishing what was said. When the opportunity arose to hold a panel discussion to recreate our water-cooler chat at the symposium last fall, I jumped at the chance. I was tickled pink that my two colleagues consented to join me in the recreation exercise. They are good sports, wise lawyers, and excellent teachers.
My objective in convening the panel was two-fold.
First, I thought that students would find the conversation illuminating. "Aha," they might justifiably say. "Now I know why I am confused about what a merger is. It's because the term means different things to different lawyers, all of whom may have a role in advising on a business combination transaction. I have to understand the perspective from which the question is being asked, and the purpose of answering the question, before I can definitively say what a merger is." Overall, I was convinced that a recreation of the conversation through a panel discussion could be a solid teaching tool.
But that's not all. Faculty also can earn from our dialogue. It helped me in my teaching to know how my tax colleague (who teaches transactional tax planning and business taxation) and my property colleague (who teaches property and secured transactions) define the concept of a merger and what each had to say about his definition as it operates in practice. I like to think my two colleagues similarly benefitted from an understanding of my definition of a merger (even if neither believes in statutory magic) . . . .
Now, you and your students also can benefit from the panel. Although it is not quite as good as hearing us all talk about mergers and acquisitions in person (which one can do here), Transactions: The Tennessee Journal of Business Law, recently published an edited transcript of the panel discussion as part of the symposium proceedings. It also is titled "What is a Merger Anyway?" And you can find it here. (The entire volume of the journal that includes the symposium proceedings can be found here. Your friends from the BLPB are the featured authors!) I am sure that your joy in reading it cannot match my joy in contributing to the project, but I hope you find joy in reading it nonetheless.
What remains when the intoxicating distractions of life are removed?
I read both of these books on vacation at Ocean Isle, NC late last month; this was not exactly light, uplifting beach reading.
Before the plague engulfed the Algerian coastal town of Oran, Camus’ narrator notes that:
Our citizens work hard, but solely with the object of getting rich. Their chief interest is in commerce, and their chief aim in life is, as they call it, “doing business.” Naturally they don’t eschew such simpler pleasure as love-making, sea bathing, going to the pictures. But, very sensibly they reserve these past times for Saturday afternoons and Sundays and employ the rest of the week in making money, as much as possible . . . . Nevertheless there still exist towns and countries where people have now and then an inkling of something different. In general it doesn’t change their lives. Still they have had an intimation, and that’s so much to the good. Oran, however, seems to be a town without intimations; in other words, completely modern.
In sharp contrast to the citizens of Oran, Ben Ellis had steadier footing in advance of tragedy. Ben Ellis was a teacher at the private school connected to our church in Nashville (CPA). Our current pandemic has been clarifying for me in many ways, and it has convinced me that Saint Paul was correct when he wrote that faith, hope, and love are the things that remain. Ben Ellis was already building his life on those three things prior to his cancer diagnosis. As his condition worsened in September of 2016, over 400 students gathered outside of his home to sing worship songs with him. Ben Ellis died about 10 days later. Difficulties can clarify, and Ben’s death clarified that he spent his time focused on meaningful things outside of himself. Watch the clip below to see clear evidence of a man who loved God, his students, and his family well. (His daughter is so poised and thoughtful, and the headmaster obviously valued him).
But for many of the citizens of Oran, and many of us in the individualistic, materialistic United States, difficulties can also show that we rest on a shaky foundation. If we are focused primarily on financial success and personal status, something like a pandemic or cancer can destroy the entire endeavor in short order.
In terms of “success,” as it is typically defined in the United States, few could be said to surpass Doctor Paul Kalanithi. He followed an undergraduate and masters degree at Stanford University with medical school at Yale. At the time of his cancer diagnosis, he was in his last year of neurosurgical training as the chief resident back at Stanford University. But even with just a few months left to live, Paul went back to work. The purpose of work does not have to be centered on finances and status. In Paul’s case, he returned to work, I think, primarily because he was doing meaningful work with people he cared about. Impending death clarified that status was of little importance, and he turned down a prestigious and lucrative job offer far from family. I do wonder if he would have taken that job in Wisconsin, but for his diagnosis. From his writing, it sounds like he probably would and that may have been a mistake given his underlying priorities. We often lean toward finances and status, even if our highest priorities lie elsewhere. Hopefully, this pandemic can give us all some time for reflection and help us make decisions that elevate those things that are most important.
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 today 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.
Tuesday, May 19, 2020
I am teaching Business Associations this summer, and I am excited to get back in the classroom. Well, I was. Instead, I am teaching in virtual class room via Zoom. I am still glad to be interacting with students in a teaching capacity, but I sure miss the classroom setting. I am glad, though, to have this experience so I am closer to what this has been like for our students and faculty. I still have the benefit of my colleagues experiences, students who have been in the online learning environment, and a little time to plan, so it's better for me than it was for everyone in March. Still, there is quite a learning curve on all of this.
Over the past several years, I have asked students to create a fictional limited liability company (LLC) for our first class. It does a number of things. To begin, it connects them with a whole host of decisions businesses must make in choosing their entity form. It also introduces them to the use of forms and how that works. I always give them an old version of the form. This year, I used 2017 Articles of Organization for a West Virginia Limited Liability Company. It does a couple of things. There is an updated form (2019), so it gives me a chance to talk about the dangers of using precedent forms and accepting what others provide you without checking for yourself. (Side note: I used West Virginia even though I an in Nebraska, because Nebraska doesn't have a form. I use this one to compare and contrast.)
In addition, I like my students to see how most businesses start with entity choice and formation -- by starting one. It leads to some great conversations about limited liability, default rules, member/manager management choices, etc. Each year, I have had at least one person opt-in for personal liability, for example, for all members.
I also, which will shock no one, use the form to discuss the distinct nature of LLCs and how they are NOT corporations. And yet, the West Virginia LLC form tries to under cut me at each turn. For example, the form requires that the LLC name choose a "corporate name ending." From the instructions:
Enter the exact name of the company and be sure to include one of the required corporate name endings: “limited liability company,” “limited company,” or the abbreviations “L.L.C.,” “LLC,” “L.C.,” or “LC.” “Limited” may be abbreviated as “Ltd.” and “Company” may be abbreviated as “Co.” [WV Code §31B-1-105] Professional companies must use “professional limited liability company,” “professional L.L.C.,” “professional LLC,” “P.L.L.C.,” or “PLLC.” [WV Code §31B-13-1303]
Seriously, people. LLC are not corporate. In fact, choosing a corporate name ending would be contrary to the statute.
The form continues:
13. a. The purpose(s) for which this limited liability company is formed is as follows (required): [Describe the type(s) of business activity which will be conducted, for example, “real estate,” “construction of residential and commercial buildings,” “commercial painting,” “professional practice of law" (see Section 2. for acceptable "professional" business activities). Purpose may conclude with words “…including the transaction of any or all lawful business for which corporations may be incorporated in West Virginia.”] (final emphasis added)
Finally, the instructions state that
[t]he principal office address need not be in WV, but is the principal place of business for the company. This is generally the address where all corporate documents (records) are maintained.(final emphasis added)
My students know from day one this matters to me, and it's not just semantics. My (over) zealousness helps underscore the importance of entity decisions, and the unique opportunities entities can provide, within the default rules and as modified. My first day, I always make sure students see this at least twice: "A thing you have to know. LLCs are not Corporations!"
Is it overkill? Perhaps, we all have our things.
Oh, and it's time for West Virginia to add a 2020 update to the LLC form.
Friday, May 8, 2020
After finishing Aldous Huxley’s Brave New World, I devoured Neil Postman’s Amusing Ourselves to Death. Published in 1985, Postman’s thesis is that Huxley in Brave New World, not George Orwell in his dystopian novel 1984, more accurately predicted life in the modern United States. In the forward to his book, Postman writes:
Contrary to common belief even among the educated, Huxley and Orwell did not prophesy the same thing. Orwell warns that we will be overcome by an externally imposed oppression. But in Huxley’s vision, no Big Brother is required to deprive people of their autonomy, maturity and history, As he saw it, people will come to love their oppression, to adore the technologies that undo their capacities to think.
What Orwell feared were those who would ban books. What Huxley feared was that there would be no reason to ban a book for there would be no one who wanted to read one. Orwell feared those who would deprive us of information. Huxley feared those who would give us so much that we would be reduced to passivity and egoism. Orwell feared that the truth would be concealed from us. Huxley feared the truth would be drowned in a sea of irrelevance. Orwell feared we would become a captive culture. Huxley feared we would become a trivial culture. (xix).
Postman argues that we have moved from an Age of Exposition--where print-based works encouraged logic, order, relevant criticism, and deep learning--to an Age of Show Business, dominated by "the language of headlines--sensational, fragmented, impersonal.” (55-70). This shift, according to Postman, has led to a focus on applause over reflection, a focus on image instead of ideas. He compares a 7-hour Lincoln-Douglas debate in the Age of Exposition (44-45) to the 1984 Age of Show Business presidential debates with 5-minute addresses and 1-minute rebuttals (97). Given the biases of the medium of television influencing the 1984 “debates,” Postman argues that:
in such circumstances, complexity, documentation, and logic can play no role, and, indeed, on several occasions syntax itself was abandoned entirely. It is no matter. The men were less concerned with giving arguments than with “giving off” impressions, which is what television does best. Post-debate commentary largely avoided any evaluation of the candidates’ ideas, since there were none to evaluate. Instead, the debates were conceived as boxing matches, the relevant question being, Who KO’d whom? The answer determined by the “style” of the men--how they looked, fixed their gaze, smiled, and delivered one-liners. (97)
Having watched a number of political “debates,” I must say Postman nails it here, though 5-minute addresses may have shrunk to 2-minutes by 2020! In contrast, on October 16, 1854, Douglas received 180 uninterrupted minutes before Lincoln was given a chance to respond. In a shorter debate on August 21 1858, Douglas received 60 minutes to speak, followed by a 90 minute reply from Lincoln, and concluding with a 30 minute rebuttal by Douglas. Unfortunately, in the modern United States, Postman convincingly argues that “the fundamental metaphor for political discourse is the television commercial….on television commercials, propositions are as scarce as unattractive people...the commercial disdains exposition, for that takes time and invites argument.” (126-31)
Those who run television do not limit our access to information, but in fact widen it. Our Ministry of Culture is Huxleyan, not Orwellian. It does everything possible to encourage us to watch continuously. But what we watch is a medium which presents information in a form that renders it simplistic, nonsubstantive, nonhistorical, and noncontextual: that is to say, information packaged as entertainment. In America, we are never denied the opportunity to amuse ourselves. (141)
According to Postman, the Age of Show Business influences everything from how modern books are written to how our education is shaped. His tenth chapter is entitled “Teaching as an Amusing Activity” and starts with intense criticism of Sesame Street. Postman claims, “[w]e now know that ‘Sesame Street’ encourages children to love school only if school is like ‘Sesame Street.’ Which is to say, we now know that ‘Sesame Street’ undermines what the traditional idea of schooling represents.” (143). Postman cites no evidence to support this claim and the research on Sesame Street’s impact seems varied. Nevertheless, Postman argues that the material in the Sesame Street shows is not nearly as important as the way it is taught. Postman writes “the most important thing one learns is always something about how one learns," not the content of the lesson. (144). In responding to television's increasing influence, Postman argues that teachers are increasing visual stimulation in the classroom and “are reducing the amount of exposition their students must cope with; are relying less on reading and writing assignments; and are reluctantly concluding that the principal means by which student interest may be engaged is entertainment.” (148-49).
Postman admits that he doesn’t have strong solutions for the shriveling cultural spirit that he observes (155-63). He is not optimistic about Americans abandoning television nor about attempts to improve the programming. The only hope he sees is education, though he admits that even education may be powerless. Interestingly, Postman (in 1985) claims that he “believe[s] the computer to be a vastly overrated technology.” (161). More accurately he predicted:
[Americans will give computers] their customary mindless inattention, which means they will use it as they are told, without a whimper. Thus a central thesis of computer technology--that the principal difficulty we have in solving problems stems from insufficient data--will go unexamined. Until, years from now, when it will be noticed that the massive collection and speed-of-light retrieval of data have been of great value to large-scale organizations but have solved very little of importance to most people and have created at least as many problems for them as they may have solved. (161)
I need to do a lot more thinking about this book. Postman makes a compelling case for the shallowness of the Age of Show Business, but I am more hopeful than Postman that students, with the help of professors, can see this shallowness and work in more meaningful directions. While many of us have been immersed in the Age of Show Business for our entire lives, we professors should aspire to much more than mere amusement in education. There is great value in working through dense, difficult material over long periods of time. This difficult work may not be enjoyable in the short-term for students, but it is indispensable for deep work and growth to maturity. Sadly, the pull of the Age of Show Business is quite strong, and maybe the amusing Matt Damon will be cast for the role of professor in future classes. For all our sake, let's hope not.
Monday, May 4, 2020
In two earlier posts (here and here), I addressed a number of issues and tips related to the emergency remote online teaching that became the norm for most of us in the law academy back in March. I finished my "classroom teaching" for the semester two weeks ago. My online timed exam was given last week. My take-home project in another class is due this week. I survived; the students survived. That may be the best I can say for all that.
However, a larger, long-term issue looms in the background relating to the online teaching we did--and may continue to do--as a result of COVID-19. That issue? Whether our current remote teaching will catalyze a movement in higher education, including legal education, to teach more classes online. If university and law school budgets continue to contract, administrators may see cost-savings in moving more courses online.
This issue has engendered much debate among educators generally. I bring it to the fore here for consideration in the business law teaching context. I have mixed feelings about moving clinical, simulation, and standard doctrinal business law courses online. The reasons vary from course to course. And there is no doubt much that I likely do not see or anticipate that I would want to take into account.
As a result, I have started reading up on online teaching and online course design, and I have been thinking through my personal experience with remote teaching this semester. Among the articles I read this past week is this one, which calls on us to push back against central administrative demands to move teaching online. In fact, I am not opposed to moving some of my teaching online. But I would want to be able to choose what to move online, when, and how based on quality information and my own assessment of the benefits to and challenges for our learners.
Have you thought about teaching all of your courses online? If so, I would be interested to know your views . . . Please share them below, or send me a message.
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.
Thursday, April 2, 2020
Due to the uncertain length of the COVID-19 global pandemic, and out of an abundance of caution, we have decided to cancel the Transactional Law and Skills Education Conference currently scheduled for June 5-6, 2020.
We will re-schedule the Conference and revisit our theme – “Hindsight, Insight, and Foresight: Transactional Law and Skills Education in the 2020s” – when it is appropriate and safe to do so.
If you have already registered for the Conference, we will refund your money. If you have submitted a proposal or a nomination for the Tina L. Stark Award for Teaching Excellence, you will have the opportunity to resubmit your proposal or nomination when we establish the new Conference date.
If you have already reserved a room at the Emory Conference Center Hotel please call them at 800.933.6679 to cancel your reservation. For other Conference-related questions, please contact our Conference Coordinator, Kelli Pittman at firstname.lastname@example.org.
During this period of “social distancing,” we are proud to be members of a community of transactional law and skills educators dedicated to excellence. We look forward to re-scheduling the Conference and welcoming you back to Emory.
Wednesday, April 1, 2020
This post comes to us from friend-of-the BLPB Nadia B. Ahmad. Many thanks to her for this contribution. Her post follows nicely on the spirit of my "Teaching through the Pandemic" posts, which can be found here and here. My favorite part may be the bit on "Troubleshooting Life and Expectations."
As I begin this post on Sunday, March 29, 2020, there are currently 674,466 confirmed cases of coronavirus (COVID-19). Immunology and infectious disease researchers are working round the clock with their heads down for a cure and a vaccine, but we have nothing in the near term for an end to this situation. The markets have been a tumbling since January 2020 and spiraling downward since March 2020. Even Brexit and the deceleration of China's economy could not have expected this downturn in the market.
On March 12, 2020, I taught my last in person Business Organizations class for the semester. For the first half of the class, I had the students complete a practice essay in Canvas on the business judgment rule. The remainder of the time, I had them join via WebEx on their laptops. In that class, approximately 40 percent of the students were able to login to WebEx via Canvas for a lecture of derivative litigation. The rest could join with a direct link. During that triage session while they were in the room, I learned how to troubleshoot connectivity issues with the help of my students. For the past two weeks of online learning, I have had 100 percent attendance in both my classes and student engagement is up as well.
I wanted to share some insights related to teaching via WebEx as well as online teaching generally.
Learning WebEx’s Virtual Classroom
Spending some time on YouTube helped me with figuring out how the platform works. The university also offered some training sessions, but I found YouTube video easier to help me.
Periodically, WebEx may be down altogether because of the load on its system, you can check WebEx’s global status here.
For troubleshooting WebEx audio issues, visit here.
For WebEx video support, visit here.
Some students may have a weak Wifi connection. To alleviate this issue, I also provide the dial-in number. Only one or two students have this issue, but it is also a reliable backup if students cannot connect via WebEx. To locate the dial-in number for your WebEx meeting, visit here.
Checking Hardware and Connectivity (WiFi and Audio)
Some issues with WebEx meeting will be unrelated to the platform itself. While your computer’s existing audio and video functionalities may work, I have found that using a microphone enhances the audio experience. I used Professor Josh Blackman recommendation of the Blue Snowball USB microphone.
Check your high speed internet connection here. You should be running at around 50 mbps. If your internet connection is slower, consider an upgrade in speed.
Troubleshooting Life and Expectations
As an introvert, I welcome this scaling back on social interactions on some levels. At the same time, I miss my students. I have chosen to do hybrid asynchronous/synchronous sessions. I record part of my lectures, but also have live class sessions as well. I was bit nervous to record the classes until I actually did do it and later read a post by Professor William Fischer (Harvard) on Emergency Online Pedagogy. Recording classes is considerate of not only students, but the server. Fischer writes:
First, the quality of a pre-recorded lecture is likely to be substantially higher than that of lecture delivered live. Pre-recorded lectures can be constructed in segments — which can then either be posted online separately (like this) or stitched together and posted online as a single unit. If you are not happy with one segment, you can discard and replace it. Equally important, it is much easier to integrate graphics and audiovisual material in a pre-recorded lecture. (Some techniques for doing this will be discussed shortly.) Last but not least, pre-recorded lectures can be edited.
Having used both formats, I am now strongly in favor of pre-recorded rather than live lectures. Feedback from my students over several years makes clear that they share this preference. My lectures are significantly tighter and clearer when I record them in advance. You may think that you can produce an elegant lecture in “one take,” and perhaps you are right — but I confess that I thought so as well until I watched a recording of one of my unedited presentations.
The second advantage of a pre-recorded lecture is that it is not vulnerable to a major technological threat posed by the sudden and massive shift to online education prompted by the pandemic. … Betting a class on the availability of Zoom [or WebEx] at a particular time is thus risky. By contrast, a pre-recorded lecture can be uploaded to the Internet at any time. In addition, students need not “stream” it, but instead can download it to their computers and then watch it at their convenience. This delivery method is far less vulnerable to technological overload. In addition, the larger the number of teachers who rely on pre-recorded lectures, the smaller will be the aggregate burden imposed on Zoom [and other platforms] and thus the greater the likelihood that it will be available when we need it.
Part of wanting to record a portion of the lectures is also a practical matter for me. I have three kids (ages 2.5, 6, and 9) and my partner is a health care worker and is still working. At any rate, I look forward to welcoming week #4 of online learning and will share tips on integrating current events into discussion on business organizations, the markets, and derivative litigation.
Monday, March 23, 2020
I write today to share some Zoom connectivity tips that I have accumulated since my first post on this topic. I spent class time before (and personal time during) Spring Break, which concluded for us yesterday, testing Zoom connections with students--working with them to overcome barriers to clear Internet communications using Zoom. My collected tips, which I shared with my students yesterday, are pasted in below.
Some items on my tip list may not be applicable to you and your students. Most are mentioned elsewhere; and if you already have been teaching using Zoom for a week or more, you may well have already figured all this out in any case. Nevertheless, I thought it might be useful to share my "top five" here.
1. Close out of open files and applications before you join in on our class meeting. Allow your computer to focus its activity on our class exclusively.1
2. If you are sharing bandwidth in your household, ask your household members if they can schedule their usage around your class meetings. Internet speed issues can have a real effect on the performance of video conferencing software.2
3. Log in through the campus's Zoom page, [the url for that page was included here in the original]. It seems to work better than than logging in through the Zoom app directly. But each of us may want to try each way on our own to see if it makes a difference.3
4. Download the Zoom app for your phone. If your Internet connection fails, you may be able to join or re-join class from your phone, assuming your data plan can support that use.4
5. Remember that you can test your audio or video on Zoom by clicking on zoom-us in the tool bar and clicking on Audio or Video. You will see the test options there. Please run those tests before class!5
I also reminded my students to log into class about ten minutes early to best ensure that their links to the class meeting are as strong as possible once class begins.
Nothing in my tip list is Earth-shattering. But if you are troubleshooting Zoom connection issues with a student, perhaps one or more of these tips will help. Regardless, I hope that everyone settles into a productive, happy online teaching experience. If you are like me, you'll figure out a way to ensure that your students are getting what they need, one way or another.
Leave your own tips in the comments. They are appreciated. Footnotes are included below.
1 From the Zoom blog:
During a meeting, other applications have a way of intruding and asking for attention from your CPU or broadband connection. While downloading information through a broadband connection, the application doing the downloading is competing with Zoom. The same occurs when you use CPU-intensive applications: they steal precious ticks from your processor.
When streaming 30 frames per second, your camera is taking 30 pictures of you each and every second, then sending them to the processor with instructions to forward the images through Zoom. Zoom uses your processor to send the images to your network card, which transmits the data to its destination. This process requires the energy of your CPU. To engage in the smoothest possible meetings, close any applications you don’t need to use for the meeting itself. It’s that simple.
2 Zoom's recommended system requirements can be found here.
3 Our campus has a super webpage dedicated to Zoom with a list of linked support documents. Yours probably does, too.
4 Zoom has a webpage dedicated to information for mobile users.
5 Zoom offers a streamlined process for testing audio and video from the view screen at this webpage (which includes, among other things, a brief video).
Friday, March 13, 2020
So glad Colleen published the Skadden information in her post earlier today. I had considered doing that, too. Instead, I will add two links to the growing knowledge base. They both relate to teaching during these challenging times. Then, I will offer a few thoughts of my own.
First, friend-of-the-BLPB Seth Oranburg alerted me to some distance education tips he has posted. They can be found here. I appreciate him taking time to write his ideas out and get this essay posted.
Second, Josh Blackman posted tips on teaching using Zoom here. Some of us are more familiar with videoconferencing technology than others. I have not taught more than a few classes online, but I am comfortable with Zoom. A few of Josh's ideas were new to me and seem very useful in the emergent online teaching environment.
Since most law students will be taking all of their courses (as well as conducting meetings and continuing to do much or all of their reading and written work) online, the possibility of boredom and internet overload/online burnout is very real. As someone who recently suffered from digital eye strain (a/k/a computer vision syndrome), I also am concerned about the possibility that some students will have to combat that. It will be more important than ever that we take time away from our electronic devices to ensure good physical, psychological, and emotional health.
Nevertheless, I am toying with continuing to teach my Wednesday law school yoga class online (students already have asked about it) while UT Law is closed to students, since maybe just hearing my voice and doing yoga together could be helpful and healing. (And at least they would not have to check their phones or computers visually unless they had a question about a pose!) Not sure about that yet . . . .
I expect to write more about this. And maybe some of my co-bloggers will do the same. Comments are always appreciated, too. Let's all support each other in the brave new teaching world so many of us are facing.
Monday, March 2, 2020
I recently had occasion to offer background to, and be interviewed by, a local television reporter about a publicly traded firm that owns several health care facilities in East Tennessee and has been financed significantly through loans from and corporate payments made by a member of its board of directors. The resulting article and news clip can be found here. Since the story was published, a Form 8-K was filed reporting that the director has resigned from the board and the firm is negotiating with him to cancel its indebtedness in exchange for preferred stock.
In reviewing published reports on the firm, Rennova Health, Inc., I learned that it had been delisted from NASDAQ back in 2018. The reason? The firm engaged in too many stock splits.
I also came across an article reporting that another health care firm, a middle Tennessee skilled nursing provider, Diversicare Healthcare Services, Inc., had been delisted in late 2019. The same article noted two additional middle Tennessee health care firms also were in danger of being delisted from stock exchanges. One was subsequently delisted.
Health care mergers and acquisitions also have been in the news here in Tennessee. A Tennessee/Virginia health care business combination finalized in 2018 is one of two under study by the Federal Trade Commission. The combining firms, Mountain States Health Alliance and Wellmont Health System, avoided federal and state antitrust merger approvals and challenges through the receipt of a certificate of public advantage (COPA) under Tennessee law and a coordinated process in Virginia. The resulting firm, Ballad Health, is an effective health care monopoly in the region and has had well publicized challenges in meeting its commitment to provide cost-effective, quality patient care.
I can only assume that these health care corporate finance issues in Tennessee are a microcosm of what exists nationally.
All of this has made me interested in the U.S. healthcare industry as an engaging and useful lens through which one could teach and write about the legal aspects of corporate finance . . . . Many of the current business law issues in U.S. health care firms stem from well-known financial challenges in the industry and the related governmental responses (or lack thereof). With public debates--including in connection with this year's presidential caucuses, primaries, and election--over the extent to which the federal government should provide financial support to the health care industry under existing conditions and whether the health care industry has become too big to fail, health care examples and hypotheticals seem very salient now, in the same way that banking or telecomm examples and hypotheticals may have had pedagogical and scholarly traction in corporate finance in the past.
Some of the business law issues facing U.S. health care firms may be quite the same as they are for firms in any other industry. Yet, some also may be unique to the health care industry and worth further, individualized exploration in the classroom or in the research realm. For example, innovation and entrepreneurship--intricately tied to corporate finance--may be different in the health care space, as currently configured in the United States. This article makes arguments in that regard.
In all, it seems there is a synergy worth examining in the connections between the U.S. health care crisis and business law teaching and research. Unless and until something fundamental changes in the U.S. health care delivery system, corporate finance lawyers and professionals are likely to have important (if somewhat hidden) roles in ensuring that health care firms survive while providing cost-effective care to those who need it. Business law analyses and innovations are sure to play strong roles in this environment, making business law professors key potential contributors. Time for us to step up and take the challenge!
Monday, February 17, 2020
In an email exchange with Stanford business law clinician Jay Mitchell, I learned of this intriguing post on legal document design. Jay takes the design thinking context way beyond my "legal design" idea of using IRAC in corporate finance drafting as a means of ensuring that students are engaging with applicable law and norms in their drafting, and in doing so, he makes a number of interesting observations and points that relate to both document planning and drafting, on the one hand, and teaching planning, drafting, and overall business law practice, on the other. Here are a few.
- "The physical design of clinic work-products and client communications is a constant concern. It’s humbling, idea-generating, and inspiring to look at graphic design and wayfinding books and see great solutions to complex information design challenges."
- "Our world is one of entities; structures; flows of information, money, and property rights; time periods; decision-making processes; legal, tax, and accounting principles; and dense and difficult documents — and then helping clients operationalize all this across multiple functions and geographies. Seems like we need good tools for capturing, assessing, and conveying information. Visual executions can provide those tools. They have great communicative capacity: shape, color, line, line weight, line effects, and white space are all at hand, and, as noted, people just get pictures."
- "Design outlooks and practices seem to distill and operationalize knowledge, from a variety of disciplines, in ways relevant to a lawyer, service provider, professional writer, and producer of tangible products. Our clients notice the attention to user, context, and functionality, as well as factual and legal accuracy, in our advice, client communications, contracts, and governance materials."
- "In a setting where students are drafting and doing other legal tasks for the first time, we need to give them room to try, receive feedback, and try again."
- After advocating sketching (using shapes, colors, etc. on a whiteboard) with students: "Sketching enables us to visibly and slowly break down a situation, and then to build it back up, step by step. It lets, or maybe forces, us to leave out detail; it helps reveal higher-order relationships that are otherwise difficult to discern. It helps us define the problem and possible solutions. Those qualities make it a good tool for identifying the most important features in an unstructured environment . . . ."
- "What are seen as core elements of design thinking are now familiar: observation, empathy, ideation, and experimentation. Designers focus on the realities and needs of people for whom they’re designing a product or process. They frame problems and generate lots of ideas. They test those ideas through low-fidelity prototypes, over and over. They try to “keep people at the center” of their work. These are useful notions for the clinical teacher or senior lawyer working with new lawyers." (footnote omitted)
Jay notes along the way in describing the impact of design thinking on his teaching and practice: "I’ve learned more about legal documents, about their features and footprints, about what they demand of user and thus producer. Which leads to thinking harder about what to make, what to include, and how to present information in effective ways. And to productive discussions with students not only about work-product but also client respect and client reality." Great stuff. I know that our contract drafting curriculum at UT Law focuses on presentation as well as content (as do, I am sure, most similar law school programs of that kind). Jay's post is great food for thought in executing on that focus.
Tuesday, February 4, 2020
When do transactional business lawyers add value to projects? The literature tells us that transactional business lawyers can help correct information asymmetries and facilitate regulatory arbitrage through their knowledge and skills. That all seems right. But how can that message and other conceptions of value be conveyed to first-year law students in less than two hours in a mandatory, S/NC course (i.e., a course in which some--maybe many--of the students do not really want to be there and believe they have better uses for their time)? Welcome to my world, for today . . . .
Steve Bainbridge has a nice blog post relating to transactional business lawyers that our students are required to read before class. (Thanks, Steve!) We will discuss the absence of transactional business lawyers in popular culture, elucidate the value propositions they represent in real life, and work through some business transactional scenarios that illustrate the value (or lack thereof) of involving lawyers in the matter. I have worked out the class plan with my co-instructor (who cannot be there for this class meeting). But I am looking for more.
What, in your view, must I ensure that I cover--and how? Are there videos or charts that you recommend I "check out" for potential presentation to the class? I teach the main session on this topic tomorrow afternoon (and I had hoped to post this yesterday . . .), but I can always come back to this topic in a future class meeting, if I play my cards right. Let me know if you have ideas or views.
Monday, January 13, 2020
Each time I teach Advanced Business Associations, I try to engage students on the first day in an exercise that leverages their existing knowledge of business associations law but also introduces new angles and nomenclature. I assign a reading (this year, on shareholder wealth maximization) and ask each student to write up a brief definition of the concepts of “policy” and “theory” as they may apply to and operate in business associations law. I then ask them to relate their definitions to the reading.
So, the core question before the house in that course on the first day of classes last week effectively was the following: is shareholder wealth maximization legal doctrine, policy, theory, or something else? We had a wide-ranging discussion on the question, working off three propositions I put on the board. The class session enabled me to review some concepts from the foundational Business Associations course while also discussing the role of theory and policy in law and lawyering, getting some creative mental juices flowing, and teaching a bit of the new vocabulary they will need for the course.
I decided that it could be beneficial to share with my students the views of others on our effective core question from class last week. So, today, I ask you:
Shareholder wealth maximization: doctrine, theory, policy, or something else?
Offer your answers in the comments or send me a private message. You can pick more than one category, of course, in classifying shareholder wealth maximization. In other words, the categories are not intended to be mutually exclusive. A brief explanation for your response would be helpful. I will not attribute the answers I pass on, unless you want me to. I hope this post will stimulate some interesting responses, but I also know that law professors are busy with the start of the new semester. It may go without saying, but (especially in these circumstances) a short response is appreciated as much as a long one.
Monday, January 6, 2020
Business Associations is a tough course to teach, whether it is taught in a three-credit-hour or four-credit-hour format. I have written before (here, here, and here) about the challenges of teaching fiduciary duties in this course. And I recently posted here and here about the characterization of a classic oversight conundrum as a matter of corporate fiduciary duty law in Delaware.
I just recently finished grading my Business Associations exams from last semester. They were a good lot overall, but they evidenced several somewhat common errors that seemed to beg for broad dissemination to the class. So, I sent them all a message inviting them to come in and review their exams and highlighting certain things for their attention of a more general nature.
Today, I offer you that general counsel that I gave to my Business Associations students based on that review of their written final exams. It is set forth below, absent my introductory and closing remarks. As you'll see, some of it relates to substantive law, and some of it relates to exam or other skills. Perhaps this is of use to those of you who just taught or are about to teach the course. Maybe some students will read it and learn from it. Regardless, here it is.
- Agency rules and management rules in business associations law are often confused. Agency rules express the authority of a person to act on behalf of the firm in transactions with third parties--those who enter into transactions with the firm. For example, by default under the RUPA, each partner in a RUPA partnership is an agent of the partnership that can bind the partnership to contracts with others. Management rules, by contrast address the governance and control authority of a particular firm constituent within the governance structure of the firm. Thus, agency rules relate to authority that is outward-facing (pertaining to transactional parties) and management rules relate to authority that is inward-facing (pertaining to internal constituents of the firm). For example, by default under the RUPA, each partner has an equal right to manage the partnership.
- Similarly, the concept of "limited liability" is commonly understood to refer to the limited liability of a firm owner for the firm's obligations. For example, under the RUPA, each partner is jointly and severally liable for the obligations of the partnership, whereas under corporate law, shareholders are not personally liable for the corporation's obligations to third parties. Exculpation, which eliminates the monetary liability of directors in the corporate context, relates to corporate governance claims--legal actions for breach of the fiduciary duty of care. This is internal governance litigation that does not relate to corporate obligations to third parties. So, while exculpation does limit (eliminate) a director's personal liability for a breach of the duty of care, it is not part of what people generally refer to as "limited liability" in a corporate context.
- Fiduciary duties are typically understood to instill or increase trust in relationships. Accordingly, they are commonly employed to provide a benefit in circumstances involving untrustworthy business associates. Yet a number of you seemed to think they were an undue burden to business venturers in circumstances where trust may be lacking (i.e., where fiduciary duties should be useful). You will need to make a solid argument to most folks to justify that the detriments outweigh the benefits.
- If an exam or assignment question asks for you to talk about why one set of rules is better than another in addressing a specific scenario, make sure you contrast examples from the two sets of rules, applying each to the relevant facts.
- Read questions carefully and closely. When a question asks for you to reference or rely on statutory default rules,ensure that your response references or relies on statutory default rules--not on ways on which those rules can be or have been agreed around through private ordering. When a question asks for information or an evaluation or rules relating to member-managed LLCs, ensure you directly address member-managed LLCs in lieu of (or at least before) commenting on manager-managed LLCs or the flexibility of moving back and forth between member-managed and manager-managed LLCs.
- Don't forget to cite to an appropriate source for rules on which you rely in your legal analysis.
- Keeping track of and managing time is important to the bar exam and other in-class timed exercises. If you ran out of time in responding to the prompts on this exam, evaluate why. I can help, if need be. But understanding how and why your time management skills may have failed you can be important.
Feel free to add your observations or advice of a similar (or different) nature in the comments. I am teaching Advanced Business Associations this semester, so I can work on some of these things during that course. In any event, I wish you all a happy and healthy semester and year, whatever you may be teaching or doing.
Monday, December 30, 2019
The title of this post is the core question behind a transactional law laboratory that I am co-teaching with my amazing colleague Eric Amarante for a seven-week period starting next week. The course is being taught to the entire 1L class (intimidating!) in one two-hour class meeting each week. In essence, the course segments explore, principally through the subjects taught in the first-year curriculum, the nature of transactional business law. This is our first semester teaching this course, which is a substantially revised version of a course UT Law added to its 1L curriculum three years ago. We are pretty jazzed up about it--but understandably nervous about how our course plan will "play" with this large group.
Because 1Ls come to transactional business law from various different backgrounds and experiences (including different first-semester law professors), we plan to begin by striving to develop some common ground for our work. To that end, I am asking for a late Christmas present or early New Year's gift from all of you: your answer to one or more of the following questions. How would you define transactional business law? What are some examples of this kind of practice? What makes a good transactional business lawyer? Why should every law student need to know something about transactional business law (and what should they need to know)? Let me know.
These are the kinds of questions we'll be probing through discussions, drafting, problem-solving, and other in-class and out-of-class experiences in the context of contract law, property law, tort and criminal law, agency law, professional responsibility, and more. The objective is substantive exposure, not mastery. Although teaching 125+ students at once is a tall order (and we will be breaking the class down into small groups for various activities), I admit that I am a bit excited about this. I hope you are, too, and that a few of you will respond in the comments or send me a private message.
In the mean time, enjoy the waning holiday season. I wish a happy new year to all. And (of course) I wish good luck to the many among you who also are starting a new semester in the coming weeks.