Monday, February 17, 2020

Designing Legal Documents

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.

February 17, 2020 in Contracts, Joan Heminway, Teaching | Permalink | Comments (0)

Tuesday, February 4, 2020

The Value Proposition for Transactional Business Lawyers and Lawyering

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.

February 4, 2020 in Joan Heminway, Lawyering, Teaching | Permalink | Comments (2)

Monday, January 13, 2020

Question of the Day: SWM - Doctrine, Theory, Policy?

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.

January 13, 2020 in Business Associations, Corporate Governance, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, January 6, 2020

Advice to My Business Associations Students . . . And Maybe Yours, Too

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.

January 6, 2020 in Business Associations, Joan Heminway, Law School, Teaching | Permalink | Comments (8)

Monday, December 30, 2019

What is Transactional Business Law?

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.

December 30, 2019 in Joan Heminway, Law School, Lawyering, Teaching | Permalink | Comments (3)

Monday, October 28, 2019

Parenting and Grading

After spending the entire day grading undergraduate business law exams, I drove to my son’s elementary school for our first parent-teacher conference. On my wife’s advice, I mostly just listened. My legal and academic training have given me “a very particular set of skills” that I can use to construct and deconstruct arguments in a way some people find combative, so my wife's advice was probably wise.

The parent-teacher conference for our kindergarten-aged son went well. Most important to me, it was clear that our son’s teacher already appeared to love him and seemed committed to helping him develop. But I worry about what our education system may do to my son. Only two months into formal school, my sweet son, who has been in speech therapy since age two, is already receiving grades. Granted, the grades are pretty soft at this point – 3 for mastery, 2 for on track to complete this year, 1 for behind schedule. I hope he will not get overly discouraged. I also know he will not receive nearly as much affirmation in school for his impressive, budding artistic skills as he would for a photographic memory. 

This parent-teacher conference, coupled with a handful of especially weak student exams, prompted a lot of thoughts about grading over the past few days.

As a parent, and increasingly as a professor, I am becoming convinced that we (as a society) over-focus on grades and our grades largely miss what is truly important. As a parent, I feel a good deal of responsibility for the development of my children, and as a professor, I obviously think education is an important part of human development. But before my oldest son started kindergarten this August, I wrote down some of the traits I hope my children will develop before they leave our home. In alphabetic order, they include:

  • Compassion
  • Courage
  • Gratefulness
  • Integrity
  • Kindness
  • Patience
  • Perseverance
  • Selflessness

While it is tempting to fixate on quantifiable things, like grades, I am attempting to model, praise, and teach the character traits above. And sometimes “failure” will develop these character traits better than “success.” I am seeing this in my son. He has already struggled more academically than I did in my entire educational experience, but, perhaps because of this, he is already significantly ahead of me in compassion and kindness.

As educators, if we are wed to giving grades, why do we only grade such a narrow set of skills? (For a debate in The Chronicle of Higher Education on the usefulness of grades, see here: useful and not useful.) For example, why do we often regulate athletic, artistic, and communication-based courses to pass/fail or effort-based grades, but mark academic work with such relative precision? (One theory is that teachers and administrators are generally naturally gifted in academic pursuits, but are generally not as gifted in athletic, artistic and communication-based areas.) In middle school, for physical education class, we were graded, in part, on our 1-mile time. If I remember correctly, under 6:00 was a 100% and you failed if you ran over 12:00. While it was only maybe 10% of our overall PE grade, I can’t imagine that many schools do that these days. And I understand the arguments against doing so – namely, some students have a significant genetic advantage over other students in endurance running. That said, the same can be said for test-taking. For most students, both endurance running and test-taking can be improved, but some students face much higher hurdles than others.

All of this thinking about grading has not led me to any definite conclusions yet, but I welcome thoughts in the comments. And, in coming semesters, I may try to diversify my grading even more, to capture more skills and to challenge a wider range of students. (The students who are most harmed by our current system may actually be the straight-A students who find tests easy, but who never or rarely face assessment in their naturally weaker areas). I already include a group project and participation as parts of the grade in most of my classes, but I could probably expand this to a higher percentage of the overall grade. That said, I also think that grades should reflect the level of proficiency obtained, so I think substantive knowledge will and should remain important.

October 28, 2019 in Business School, Ethics, Haskell Murray, Teaching, Wellness | Permalink | Comments (1)

Monday, October 14, 2019

Nobel Prize and The Challenges of Global Poverty

Image result for Abhijit Banerjee, Esther Duflo and Michael Kremer

Congrats to MIT professors Abhijit Banerjee, Esther Duflo and Michael Kremer on their recent Nobel Prize in Economics

A few years ago, I completed Professors Banerjee and Duflo's free online EdX course on "The Challenges of Global Poverty."

Evidently, they are doing a rerun of that course, starting February 4, 2020. You can sign up here

October 14, 2019 in Business Associations, Ethics, Haskell Murray, Law and Economics, Nonprofits, Teaching | Permalink | Comments (0)

Monday, September 2, 2019

Work and Mindfulness: Celebrating 125 Years of Labor Day

BLPB(boardgamebusinessmanchallenge-JESHOOTS)Photo by JESHOOTS.com from Pexels

Today marks the 125th anniversary of our celebration of Labor Day as a U.S. national holiday.  As the U.S. Department of Labor reminds us:

Labor Day, the first Monday in September, is a creation of the labor movement and is dedicated to the social and economic achievements of American workers. It constitutes a yearly national tribute to the contributions workers have made to the strength, prosperity, and well-being of our country. . . .

The vital force of labor added materially to the highest standard of living and the greatest production the world has ever known and has brought us closer to the realization of our traditional ideals of economic and political democracy. It is appropriate, therefore, that the nation pays tribute on Labor Day to the creator of so much of the nation's strength, freedom, and leadership – the American worker.

Certainly, there remains much to celebrate.  Yet, an online piece written two years ago that focuses in on the history in a more detailed way offers words of caution:

The original holiday was meant to handle a problem of long working hours and no time off. Although the battle over these issues would seem to have been won long ago, this issue is starting to come back with a vengeance, not for manufacturing workers but for highly skilled white-collar workers, many of whom are constantly connected to work.

[Note: I have been accused of being constantly connected to work--or the equivalent.  Sometimes rightly so.]  The article goes on to urge taking a day off and enjoying time at a barbecue. I want to offer an additional idea: consider adding mindfulness to your tool kit (and more specifically a simple practice).

Yes, I have extolled the virtues of mindfulness practices before, including here and here.  Marcia has, too.  I want to incorporate by reference here all that we have collectively said in that regard.  But I also want to emphasize in today's post a new application of the concept--one that I learned in a series of beginner meditation classes that I completed yesterday.

All of us have thoughts relating to our work (and our personal lives) that niggle at us over time or disrupt our flow in the moment.  They may involve, for example, a grudge against a colleague or anger at an administrator or anxiety about a student or upcoming project or event.  These ongoing meddlesome thoughts interfere with our work and our lives outside work.  Specifically, they distract us and make us unhappy, inefficient, and unproductive.  They can lengthen our work days and extend the work week into weekends.  They can ruin our time with family--even at a Labor Day barbecue.

There are ways of managing this kind of stress in our work lives.  The instructor in my meditation class offered the technique (labeled, apropos of today's holiday, "The Work") suggested and promoted in Loving What Is: Four Questions That Can Change Your Life, by Byron Katie and Stephen Mitchell.  As the title of the book suggests, the approach consists of four questions.  They are:

  • Is it true?
  • Can you absolutely know that it's true?
  • How do you react, what happens, when you believe that thought?
  • Who would you be without that thought?

In addition to the book, a website offers guidance, including a series of videos.  The same coauthors have written a follow-on book, A Mind at Home with Itself: Finding Freedom in a World of Suffering.  (Byron Katie apparently has two other books--one also coauthored with Stephen Mitchell, here and here.  They also may be helpful but may not be as central to using The Work.)  I have not read any of the books, but I plan to practice the use of the four questions.

Why would I invest in this?  If used properly and successfully, what can these four questions do for me?  Here's what I have learned so far.

The four questions and the way in which they are used in The Work invite us to compartmentalize a thought that troubles us, allowing us to explore its contours and question it and ourselves.  In the process, we can reduce the suffering it causes us and slow down any reaction process that we determine is needed.  Ultimately, this method of addressing troubling thoughts has the capacity to free us from the drag that our niggling thoughts have on our working and personal lives.  The Work also may enable us to take required action to address true concerns in the workplace and at home in a manner that is more compassionate and less driven by the exigencies of the moment.

I offer this new mindfulness process for what it may be worth to you, in the spirit of personal wellness, institutional health, and Labor Day--to allow you more "time off" from work (among other things).  Regardless of the appeal--or lack thereof--The Work may hold for you, I wish you all a happy and restful Labor Day.  I am making a special brunch that I will enjoy with my husband and daughter.  No family or neighborhood barbecue is planned, but who knows?  My hubby and I may just make our own . . . .

September 2, 2019 in Joan Heminway, Teaching | Permalink | Comments (2)

Tuesday, August 27, 2019

Business Law and Leadership

Back in April, I posted on a leadership conference focusing on lawyers and legal education, sponsored by and held at UT Law.  I also posted earlier this summer on the second annual Women's Leadership in Legal Academia conference.  I admit that I have developed a passion for leadership literature and practices through my prior leadership training and experiences in law practice and in the legal academy.

Because lawyers often become leaders in and through their practice (both at work and their other communities) and because leadership principles interact with firm governance, I want to make a pitch that we all, but especially all of us teaching business associations (or a similar course), focus some attention on leadership in our teaching.  It is a nice adjunct to governance.  For example, management and control issues, especially director/officer processes in corporations, are a logical place to discuss leadership.  Who are the managers and the rank-and-file employees inspired by in managing and sustaining the firm?  Who is able to persuade the board to take action?  Is it because of that person's authority, or does that person hold a trust relationship with others that motivates them to follow?  And speaking of trust, it is an element of both leadership and fiduciary duty . . . .

As you consider my teaching suggestion, I offer you my latest blog post on our Leading as Lawyers blog.  It involves the importance of process to effective leadership.  The bottom line?

One can have a promising vision and strategy that emanate from the best of all intentions and ideas. But without engaging a process that includes effectual communication and input from, candid interchanges with, expressions of appreciation for, and buy-in from the relevant affected populations, those worthy intentions may be misinterpreted and those good ideas may die on the vine or not be implemented effectively.

We have all seen this happen in business governance.  Let's let our students in on the role that leadership plays in the practical application of business law.  It is bound to inform both their law practice and their lives.

August 27, 2019 in Business Associations, Corporate Governance, Joan Heminway, Lawyering, Teaching | Permalink | Comments (4)

Monday, August 19, 2019

Motivation from Knoxville's Female Entrepreneurs and CEOs

Apropos of my post last week on female founders and leaders of beauty unicorns (and women-founded unicorns more generally), I want to highlight this recent piece from our local paper here in Knoxville.   The women featured in the article range from high school students to holders of advanced degrees in their respective fields.  Their businesses are all technology driven and have received significant start-up funds through competition awards and grants.  None may become unicorns.  Their growth and exit strategies may not take them there.  Regardless, their ideas have apparent traction and their businesses are experiencing early-stage success.  I found each woman and her ideas totally inspiring.

Speaking of inspiring, I also will note that a day earlier, the same news outlet published an article that focused on women-led businesses in our community--and more specifically, on advice that local female CEOs desired to offer to others who are starting or managing their own businesses.  Their counsel (which includes, among many other things, encouragement to step away from business operations to achieve greater business success, as well as life balance) is priceless.  So are some of the observations these businesswomen make along the way.  Here are a few of my favorite quotes, each of which is a great lesson in leadership:

  • “I want everybody to be continual learners, and to continue to grow and take chances and do things they didn’t think they could do . . . .”
  • “Never underestimate the power of sheer determination . . . ."
  • "If you take a group of subject matter experts in whatever they do, that are mission focused, put their egos out the door and they're really interested in solving whatever the problem is, whatever the situation is in front of them, that you are going to come up with more innovative, robust, diverse, comprehensive solutions because of that diversity, because you're coming together as a team . . . ."

Great stuff.

Knoxville hosts a lot of business formation and development activity.  UT Law's business and trademark law clinics engages with some of the related legal services work.  As someone who practiced in BigLaw and worked predominantly with publicly held and larger privately owned firms, I have found my work in the Knoxville community over the past nineteen academic years to be a welcome change and, overall, very rewarding.  As I enter my twentieth year of law teaching this week, I plan use all of the goodwill that work has generated (as well as the inspiration offered by the two articles I link to above) to motivate my teaching.  I look forward to a happy and productive semester!  And if you are a law teacher (or a teacher of any kind, for that matter), I wish you the same.

August 19, 2019 in Entrepreneurship, Joan Heminway, Teaching | Permalink | Comments (2)

Friday, August 16, 2019

Is Boycotting a Bust?

     Last week, I led a “legal hack” for some of the first year students during orientation. Each participating professor spoke for ten minutes on a topic of our choice and then answered questions for ten minutes. I picked business and human rights, my passion. I titled my brief lecture, “Are you using a product made by slaves, and if you are, can you do anything about it”?

     In my ten minutes, I introduced the problem of global slavery; touched on the false and deceptive trade practices  litigation levied against companies; described the role of shareholder activists and socially responsible investors in pressuring companies to clean up supply chains; raised doubts about the effectiveness of some of the disclosure regimes in the US, EU, and Australia; questioned the efficacy of conscious consumerism; and mentioned blockchain as a potential tool for provenance of goods. Yes. In ten minutes. 

     During the actual hack later in the afternoon, I had a bit more time to flesh out the problem. I developed a case study around the Rana Plaza disaster in which a building collapse in Bangladesh killed over 1,000 garment workers six years ago. Students brainstormed solutions to the problems I posed with the help of upperclassmen as student facilitators and community stakeholders with subject matter expertise. At the end of the two-hour brainstorming session, the students presented their solutions to me.  

     We delved deeper into my subject matter as I asked my student hackers to play one of four roles: a US CEO of a company with a well-publicized CSR policy deciding whether to stay in Bangladesh or source from a country with a better human rights record; a US Presidential candidate commenting on both a potential binding treaty on business and human rights and a proposed federal mandatory due diligence regime in supply chains; a trade union representative in Bangladesh prioritizing recommendations and demands to EU and US companies; and a social media influencer with over 100 million followers who intended to use his platform to help an NGO raise awareness.

     This exercise was identical to an exercise I did in March in Pakistan with 100 business leaders, students, lawyers, government officials, and members of civil society as part of an ABA Rule of Law Initiative. The only difference was that I asked Pakistanis to represent the Bangladesh government and I asked the US students to represent a political candidate. 

     In both Pakistan and Miami, the participants had to view the labor issues in the supply chain from a multistakeholder perspective. Interestingly, in both Pakistan and Miami, the participants playing the social media influencer rejected the idea of a boycott. Even though multiple groups played this role in both places, each group believed that seeking a boycott of companies that used unsafe Bangladeshi factories would cause more harm than good. 

     Of note, the Miami Law students did their hack during the call for a boycott of Soul Cycle due to Steve Ross’ decision to hold a fundraiser for President Trump. In my unscientific poll, three out of three students who patronized Soul Cycle refused to boycott. When it came to the fictionalized case study, all groups raised concerns that a boycott could hurt garment workers in Bangladesh and retail workers in the US and EU. Some considered a “buycott” to support brands with stronger human rights records. 

     I’ve written before about my skepticism about long term boycotts, especially those led by millennials. Some of these same students echoed my concerns about their own lack of sustained commitment on proposed boycotts in the past. The “winning” hack- #DoBetterBangladesh was a multipronged strategy to educate consumers, adopt best practices of successful campaigns such as the Imokalee

farm workers, and form acoalition with other influencers to encourage consumer donations to reputable NGOs in Bangladesh. After seeing what these student groups could do in just two hours, I can’t wait to see what they can accomplish after three years of law school. 

August 16, 2019 in Corporations, CSR, Current Affairs, Ethics, Human Rights, International Business, Law School, Marcia Narine Weldon, Shareholders, Teaching | Permalink | Comments (2)

Monday, August 12, 2019

Unicorns Built by and for Women

BeautyClipart

We hear a lot about unicorns in technology, finance, and the sharing economy.   But many of us do not realize that a number of unicorns are owned by women and a number of those focus on make-up and skin care--products geared to a female audience.  Female-owned beauty unicorns are all around us . . . .

Why should we care?  Well for one thing, female-owned businesses have historically been somewhat rare.  (In 1972, women-owned businesses accounted for only 4.6% of all firms, e.g.)  And for another, it has been noted that women often have a tough time financing their businesses. (See this 2014 U.S. Senate Committee report and other sources cited below for some details.) Also, it may be interesting to some (it is to me) that a business in such a traditional space can succeed so well in private capital markets given the competitive dominance of major conglomerates (most of which are publicly traded). Also, as I note in closing below (for those teaching in the business law area), the facts and trends in this space may be fodder for great exercises and exam questions.

Women-owned businesses are beginning to catch up in the race for space in commercial and capital markets.  The National Association of Women Business Owners (NAWBO) represents on its website (based on data from an American Express report, updated here) that "[w]omen-owned firms (51% or more) account for 39% of all privately held firms and contribute 8% of employment and 4.2% of revenues."  The Women's Business Enterprise National Council (WBENC) notes that "From 2007 – 2018, total employment by women-owned businesses rose 21%, while employment for all businesses declined by 0.8%."  Women Owned, a WBENC initiative and WEConnect International, asserts that "[o]ver the past 20 years, the number of Women Owned businesses has grown 114 percent compared to the overall national growth rate of 44 percent for all businesses."  More relevant to the matter of female-led unicorns, however, the NAWBO reports that "[o]ne in five firms with revenue of $1 million or more is woman-owned" and that "4.2% of all women-owned firms have revenues of 1 million or more."

Yet, unicorns owned by women are the exception rather than the rule in women-owned businesses.  Overall, according to the WBENC, the revenues generated by businesses owned by women contribute only 4.3% of the total revenues of private sector firms, despite the fact that they constitute almost 4 of every 10 privately held businesses. WBENC also reports that "88% of women-owned businesses generate less than $100,000 in revenue," noting that "[t]his group is growing at a rate that is faster than the growth rate for larger women-owned companies." So, women still have some work to do in producing gender equity through the creation of large, independent, private firms--whether in the beauty industry or another sector.

Why would an investor fund a female-owned beauty unicorn?  Here's an answer from one who did--Glossier, well-known by me for its lip glosses, founded by Emily Weiss:

“A category that is mostly acceptable price points with high margins and consumable products—that’s a pretty good business setup,” says Green, who was the first person to back Glossier. Green points out that the momentum women like Weiss and Soare [Anastasia Soare, founder of Anastasia Beverly Hills, a leader in eyebrow products, including its famously popular Brow Wiz®] have created has forced investors to reevaluate what has historically been considered a niche women’s space but is on track to grow to $750 billion by 2024. It has also unleashed a harras of unicorn foals—entrepreneurial hopefuls working to emulate this kind of megawatt success in the cosmetics industry and beyond. “Beauty companies have never been considered companies that are changing the world,” says Weiss. But they are changing the dynamics of who’s in the boardroom.

Venture firms go where the money is, and it appears the beauty market is not yet saturated.  One needs only note the soaring popularity of Korean beauty products in the United States to understand that this is a big market.  Women are credible business leaders in this industry as key, long-term consumers of beauty products.

There is much more data out there on various aspects of women-owned businesses and unicorns.  I plan to poke at these topics more from time to time in this space.  Information about these types of firms--as part of a growth economy--may be useful to both law academics and legal practitioners--especially those working with, or engaged with issues relating to, entrepreneurs, start-ups, or small businesses.  

The mainstream business news media already has taken note.  Witness this article on Glossier in Forbes and this one in Business Insider on Anastasia Beverly Hills, the two firms mentioned above.  And, of course, the fashion retail media and blogosphere are awash with information on these firms. That's where I learned about these beauty unicorns in the first place.  Some super exercises and exams questions may come out of this space.  I already base an experiential exercise on Urban Decay, which once was a privately held female-owned beauty business.  See this case for details.  Other ideas for how to use the information and trends presented here are, of course, invited.  Leave a comment to share yours.

August 12, 2019 in Entrepreneurship, Joan Heminway, Teaching, Venture Capital | Permalink | Comments (0)

Monday, August 5, 2019

SEALS Tidbits - 2019

I am just back from the 2019 Southeastern Association of Law Schools (SEALS) conference.  I participated in several different kinds of activities this year.  This post reports out on each.

I first served as a participant in a series of discussion groups tailored to provide information to aspiring law professors.  The attendees included newly minted fellows and VAPs, mid-to-later-career lawyers/judges looking to switch to full-time law faculty (some already adjuncts or visitors), and (in general) law practitioners testing the waters for possible engagement with the Association of American Law Schools faculty recruitment process.  SEALS has served selected prospective law professors with a specialized track of preparative programming for a number of years.  This set of discussion groups represents an extension of that type of programming, on a more general informational level, to a wider audience of folks interested in careers in law teaching.

I also presented in a discussion group, sponsors by West Academic, on "Teaching to Engage."  Steve Friesland of Elon Law moderated the session.  I shared some of my "first class" and assessment simulations for business law doctrinal and experiential courses.  I learned from many others who shared their own ways of engaging students.  It was a rich discussion.

The anual SEALS "Supreme Court and Legislative Update: Business and Regulatory Issues" featured a presentation from me on a few cases and things to watch for from a legislative viewpoint.  I was joined on the panel by several super-fun business and administrative law colleagues.  One of them, Lou Virelli, posted a summary of the session on the SEALS Blog.  You can find it here.

Michigan State law prof Carla Reyes's "New Scholar" presentation of her draft paper currently entitled "Autonomous Business Reality," was fascinating.  I was proud to serve as her assigned mentor for this session.  I hope I lived up to that role, considering she is a leader in law-and-technology research and I already cite to her work on blockchain technology!  Humbling to be a mentor under those circumstances, for sure.

As part of the Free Speech Workshop, I related the history and current status of student free speech issues involving registered student organizations at The University of Tennessee, Knoxville, based on my experience as a faculty advisor to a controversial student organization on our campus.  That presentation was part of a larger discussion group on campus free speech issues.  My UT Law colleague David Wolitz was a co-discussant. Howard Wasserman of FIU Law summarized the session here.

Last--but certainly not least--I co-moderated/moderated two substantive law SEALS discussion groups.  

First, John Anderson of Mississippi College Law (with only a bit of help from me) organized and moderated a session entitled "Insider Trading Stories," in which participants focused on the narratives underlying insider trading cases--known and unknown.  This proved to be an incredibly robust and diverse discussion, highlighting issues in insider trading theory, policy, and doctrine.  Longer versions of some of the discussion group offerings will be presented at a symposium at UT Law in the fall, sponsored by the Tennessee Journal of Law and Policy (TJLP).  The TJLP will publish the edited papers in a forthcoming volume.  I was pleased to see BLPB co-blogger Marcia Narine Weldon in the room!

Second, I moderated a discussion group entitled "Benefit Corporation (or Not)? Establishing and Maintaining Social Impact Business Firms."  The program description of the session follows:

As the benefit corporation form nears the end of its first decade of "life" as a legally recognized form of business association, it seems important to reflect on whether it has fulfilled its promise as a matter of legislative intent and public responsibility and service. This discussion group is designed to take on the challenge of engaging in that reflective process. The participating scholars include doctrinal and clinical faculty members who both favor and tend to recommend the benefit corporation form for social enterprises and those who disfavor or hesitate to recommend it.

The final group pf participants included researchers/writers from the United Kingdom and Canada as well as the United States.  BLPB co-blogger (and newly minted dean) Josh Fershee was among the group, and BLPB co-blogger Marcia Narine Weldon was again in attendance. The discussion was spirited and there were more than a few "aha" moments for me.

All-in-all, a busy--but enlightening--week's work.

It soon will be time to propose programs for the 2020 SEALS annual meeting, to be held in Fort Lauderdale, Florida. The date of the conference is likely to be moved up to start on July 30 to accommodate the very early (and getting earlier) starts for schools in the Southeastern United States (and probably elsewhere, too). If you have business law program ideas or would like to moderate or participate in a business law program, please contact me by email. I find that this conference (especially the discussion groups) helps to energize my teaching and scholarship in meaningful ways. Perhaps you also would find this a great place to jumpstart the academic year.

August 5, 2019 in Conferences, Joan Heminway, Joshua P. Fershee, Marcia Narine Weldon, Research/Scholarhip, Teaching, Writing | Permalink | Comments (0)

Friday, August 2, 2019

How (Not) To Teach an (Online) Transactional Drafting Course

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”:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. Make them teachThey 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.
  8. 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.
  9. 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.
  10. 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 mweldon@law.miami.edu. 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.

August 2, 2019 in Contracts, Law Firms, Law School, Lawyering, Marcia Narine Weldon, Negotiation, Teaching, Technology | Permalink | Comments (1)

Friday, July 26, 2019

Sex, Lies, and M&A

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)

Tuesday, July 16, 2019

New Dean v. New Professor: Which Is Better?

I have been a dean for two days.  So, obviously, I have it all figured out.  (That's very much a joke). 

My sample size is small, but it seemed like a good time for me to take a shot at comparing what it's like to be a new dean versus what it's like to be a new professor. Admittedly, I am working hard to remember what it was like to be a professor in his first two days. I have the benefit of hindsight with that, while my life as dean is very much real time.  But hey, it's a blog, so I will give it a try. 

  • As a new professor, I was worried (very worried) that I did not know everything about the subject matter and that it would be obvious. As a new dean, I expect that others don't expect me to know everything, and if they do, I know they're wrong.    
  • As a new professor, I wanted everyone to like me.  As a new dean, I'd still appreciate that.  But I don't need it, and I don't expect it, and I know it is impossible. (It's impossible as a professor, too, by the way, if you do your job, but you can get closer to 100%.).  
  • As a new professor, my goals were largely personal. They were aligned with my institution, but they were about my goals. Promotion. Tenure. Publication. Citation.  As a new dean, my goals are far more institutional. Bar passage. Jobs for students. Faculty opportunity. A high-quality and inclusive workplace. 
  • As a new professor, I was hopeful. I wanted to have an impact on students, policy, and our future. As new dean, I am hopeful.  And I want the same things, too. My role is very different, by my goal is the same. 

Short list, I suppose, but those are the comparisons the stick out to me.  

I don't have any expectation that being a new dean is any easier than being a new professor. But one thing I learned as a new professor was that I need to be myself.  As a new dean, I will make mistakes, just as I did as a new professor. I hope not to, but that's not how the world works.  And it's not how learning works. Learning involves testing, trying, failing, and seeking solutions.  

What's next? I will work to be myself. That's one advantage I have.  When I started as a professor, I thought maybe I should be like other professors, and I worked to be "a professor."  Dumb.  I want to make sure any mistakes I make are mine and not me trying to be something I am not. I am not trying to be a dean. I just am one.  If nothing else, I hope that will make it easier for people to forgive mistakes.  

To my new professor and new dean colleagues, good luck.  Let's try to be ourselves and show our students and faculty and staff colleagues that genuineness has value. Because it does. It combines well with hard work, too.  

 

July 16, 2019 in Joshua P. Fershee, Law School, Teaching | Permalink | Comments (2)

Sunday, June 30, 2019

Advice for the New Business Law Prof – Part V: A Potpourri

I don’t have enough material for another focused post on advice for new business law professors (see posts I, II, III, and IV).  However, I do have a smattering of additional thoughts that I wanted to share in hopes that new professors, and potentially others, might find them helpful.  So, in no particular order:

  • As in much of life, less is generally more. Specifically, in prepping a new class, in your excitement, you might initially want to try to cover almost all of the casebook.  Just say no!  For example, given my research interests, I always wanted to cover derivatives etc. in my Banking and Financial Institutions Law course.  However, I finally learned that in a three-hour course without prerequisites, I only had time to cover how banks (and some bank-like financial institutions) were structured, regulated, and handled when in trouble. 

 

  • I think it’s helpful to add syllabus language (and note it to students) along the lines of the following: “In practice, the learning experience of each course is unique. I reserve the right to modify the scheduled readings or material to be covered to promote the best educational experience for students.” I certainly don’t recommend wholesale changes mid-course to the syllabus.  However, I do think, as fellow co-bloggers have aptly pointed out, that clearly setting expectations early on is critical.  Hence, it is helpful to set the expectation that there might be some variation in the assignments over the course of the semester to match the pace of the class.

 

  • The professor sets the energy level of each class. This is particularly important to remember if one is teaching at 8am, right after lunch, or in the evening!

 

  • When possible, be encouraging! We all love to receive encouragement!  Let’s do our best to distribute it too!  For example, if a student’s answer to a question is wrong, is there something positive you can say about their response, and then steer the class to the right answer?      

 

  • Our words, even if only casual remarks, often carry great weight with our students.

 

  • Where possible, I find it helpful to use in-class examples students can relate to, and occasionally to share recent news stories relevant to the material we’re studying.

 

  • In some courses, I’ve found it helpful to begin each class by summarizing at a very high level what we’ve already covered, what we’ll be covering that day, and what we are going to cover in the near future. Many students appreciate a reminder of the big picture.

Ok experienced professor-readers, is there something we’ve yet to mention that you think important to share with new business law professors?  If so, please help us out with a comment!    

 

June 30, 2019 in Colleen Baker, Teaching | Permalink | Comments (0)

Monday, June 24, 2019

Advice for the New Business Law Prof – Part IV: First-Class Tips

One of the things that I obsessed over (alone and together with other new business law prof colleagues) as I began my teaching career was how to teach the first day of classes in my courses.  I was given some great advice by many folks.  Here are a few of the most valuable things people told me--advice that I use all the time, in my first-class sessions and, in some cases, beyond.

Have a solid class plan.  This may go without saying, but my obsession paid off in that I was prepared, and therefore more confident (although my legs were shaking behind the podium anyway . . . ).  I actually typed up my class notes for the first semester's worth of classes I taught.  (I learned that, while I can read class notes competently, I always extemporaneity anyway . . . .  I no longer read typewritten class notes, but many of my colleagues who are experienced and effective teachers still do.)  But typing up my notes helped to reinforce key parts of the material for me and identify course themes.

Use the first class as an opportunity to introduce the semester's task, including both substantive law coverage and other learning objectives.  I use a device in each doctrinal and experiential course to offer students a window on what we are covering and how that will be done.  I include a piece on my expectations (e.g., reading the syllabus, frequently checking the course management site, reading email, producing timely and thoughtful work).  Be as clear as possible about your expectations for your students.  (As Josh Fershee said, "it's important to be as clear as possible about the what and the why.")  Write them into your syllabus, of course; but also reinforce them verbally on the first day and at every logical juncture in the course where they may be relevant.

Consider using a motivating hypothetical or in-class project to help launch the course or illustrate coverage or themes.  In my Business Associations course, after using a PechaKucha presentation as a brief introduction, I assign a few students in key roles in a new business with each other, and we use the remaining class time to talk through their expectations and how the law might address them.  In my Corporate Finance course (which I teach as a planning and drafting seminar), we begin with a nebulous drafting assignment.  In my Securities Regulation course, we begin with the financing of a vaguely described business in which the students are invited to invest.  These three sample introductory sessions are just few among the many that could be used for these or related courses.  Use your knowledge of where your course is headed to construct something relevant to your materials and course plan.

Arrive at class ten minutes early.  Engage the students in an informal way as they arrive and get settled.  Ask about how they are, what they did last summer, compliment them genuinely on something, what kind of coffee they are enjoying, etc.  Anything that comes naturally in the way of light personal banter can work.  (Continue this in subsequent classes, by the way.  It's a great way to develop a deeper relationship and trust network with your students.  This can come in handy when you flub up on something--which you inevitably will do, based on my experience and the experiences of folks I know.)

I am sure there is more I could say, but these items are the key ones, from my vantage point.  What can you add?  Leave comments to help our new colleagues along a bit.

June 24, 2019 in Joan Heminway, Joshua P. Fershee, Teaching | Permalink | Comments (2)

Tuesday, June 18, 2019

Advice for the New Business Law Prof – Part III: Defining Your Role

My colleagues started this series off well with Part I and Part II in the series, and I will try to build on their thoughts. There are so many decisions to make when you get started, including what book to use, what style you will use in the classroom, and what form or forms of assessment you will use.  To start, I will echo Joan Heminway's advice because I think it is so critical: First, be yourself. 

It's easy to to think of teachers you liked and think you need to teach like them to be effective. While we can all learn a lot from our best teachers, if you look closely, I think you'll find that the thing best ones have in common (in addition to being prepared) is that they are true to themselves. That is not to say that every person is the same in classroom as they are outside.  Some people need to be actors -- they take on a persona when they hit the classroom.  Others wear their hearts on their sleeves. Others are clinical, and still others are relaxed and casual. 

You may not know immediately your full style or classroom voice, but in my experience you know pretty quickly what isn't your thing. My advice is to make sure you don't stick with something you know doesn't feel even a little bit right for you.  You can experiment and push yourself to try new things, and you should. Just don't continue down a path that makes you feel like you're going the wrong way. Your students will feel it, too. Every time. 

As for assessment, you'll need to decide: Will you use one big final exam? Will you have a participation grade?  How about writing assignments or exercises? Will your exam be open book or closed book?  There are lots of options, and none are inherently right or wrong, though some may be better than others, especially for you and/or your school.  Here are some guidelines I use in deciding what to do: 

(1) If there is a manageable way to incorporate more writing in to the class, do it.  That might mean graded assignments, but it might mean in-class writing where students exchange their thoughts and compare it against a model or example answer.  It might mean multiple small papers or a series of blog posts.  The more students write, the better they will get at is.  And it doesn't have to mean you will be grading 5 papers from 50 students in a semester. As long as their is some accountability -- that is, someone other than the student will read it -- I have found it valuable. Asking students to write for and assess themselves has value, too, but in my experience the participation rate for those assignments tends to be lower and with less commitment for many students. 

(2) If you're not sure what to choose, or you're agnostic, find out what your colleagues tend to do, and do something different.  For example, many of my colleagues have used open-book exams, so I chose to give a closed-book exam for Business Organizations.  This gives students a different experience, which I think is valuable.  If all my colleagues gave closed-book exams, I'd probably give an open-book one.  I have done both types, by the way, and both are fine, though I prefer the output I get from closed-book exams. Students tend to write what they know instead of searching for the "perfect" answer in the book. If no one gives take-home exams, maybe consider that (though I hated those as a student and I don't like them as a teacher, your mileage may vary).  Different assessment styles provide one way to give students an experience they need as professionals to work with different partners or judges or clients. Not every experience is the same, and the best lawyers are adaptable. 

(3) Whatever you choose for any of these things, be intentional.  Do it for a reason that is more than that's what my professor did or that's what people do here.  You may choose a path for both reasons, but make sure you have considered other options and then made a conscious decision to follow that path. Be honest and open with yourself about why you chose that path. It will give you some comfort in your decision, as well as make it easier to see why you might want to change course in the future if your goals are not being met. 

(4) Be open with your students about what you are doing.  For me, that means explaining my thought process and why my rules are as they are.  My students know why, for example, I am giving a closed-book exam, do or do not use participation points, will or will not be flexible on deadlines, or why they may not want to tell me the reason they are missing class. Note that this works even for professors who are notoriously Socratic and won't answer much of anything directly.  For the good ones, it is at least clear what they will not do.  That said, for me, it's important to be as clear as possible about the what and the why.  Here is an example: in my energy law seminar, I tend to be flexible with deadlines (within reason) on due dates for drafts and papers, especially with advance notice. This is because the dates are somewhat arbitrary and designed as guidelines so I can provide feedback and students have time to internalize and incorporate my feedback. So, my students know that. But when I taught first-year legal writing, deadlines were absolute (or nearly so) with penalties up to including a failing grade for being one minute late.  Why?  One of my teaching goals there was to teach about severe and irrevocable deadlines that can be linked to court filings, statutes of limitation, and the like.  

Anyway, that's a little about how I approach things. Good luck, and don't forget to give yourself a break. As hard as we try, not everything will go perfectly. And sometimes what seemed like the right path was wrong. Or it just went poorly.  Try to figure out why, whether it was the idea, the execution, or an external factor, so you can decide whether to scrap it or just try again.  Even the best teachers are not perfect. But they are careful, committed, and intentional. Start there, and good things will tend to follow. 

June 18, 2019 in Joan Heminway, Joshua P. Fershee, Law School, Teaching | Permalink | Comments (0)

Sunday, June 16, 2019

The College Admissions Scandal and Adversity

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The college admissions scandal has been on my mind a good bit since the story broke. (Listen to the podcast "Gangster Capitalism" if you need to catch up on the details of the scandal.)

One student, more than any other in the scandal, has been in the media’s crosshairs: Olivia Jade Giannulli. Olivia Jade - a social media influencer (whatever that means) - seems to be getting so much attention because of her famous parents (actress Lori Loughlin and fashion designer Mossimo Giannulli), and because of some unfortunate comments she made about college on YouTube. Olivia Jade said: "I don't know how much of school I'm going to attend but I'm going to go in and talk to my deans and everyone and hope I can try and balance it all. But I do want the experience of game day and partying, I don't really care about school. As you guys all know. " I don’t know much about Olivia Jade, but she comes across as spoiled, arrogant, selfish, entitled, obnoxious, and lacking self-awareness. In many ways, I hope my children and my students grow up to be her opposite. 

In contrast, three runners who I have met at the Music City Distance Carnival (“MCDC”) track meet over the past few years embody character traits that I hope my children and students develop. These traits include toughness, self-discipline, humility, and perseverance.

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First is Gabe Grunewald. Gabe passed away earlier this week, after four bouts with cancer. She ran the 1500m at MCDC 2017, just days after a round of chemo. Gabe was tenacious, but also immediately likable, kind, and selfless. Much of her massive, worldwide impact, stemmed from the positivity and resolve with which she faced her grim diagnosis. Her sponsor, Brooks Running, made this moving documentary that features some of her last races and shows the depth of her relationships. After her death, running clubs across the country gathered to run in her honor, and many pro runners featured #bravelikegabe on their race bibs. Gabe’s foundation still funds research to find cures for rare cancers.

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Second, 50-year old, former Irish Olympian Shane Healy is still training and racing hard. At MCDC two weeks ago, Share broke the 50-54 year old world record in the mile (4:22), but he actually came in second to 53 year old Brad Barton who also broke the record in 4:19. I spoke to Shane the day after his race. He was gracious and thoughtful despite not claiming the record he flew across the Atlantic Ocean to secure. Shane's childhood (including time in an orphanage) and his adolescence (being bullied and facing financial difficulties) was rough, but seem to have helped build his resilience. He is currently in much better shape than the vast majority of people half his age, and is fiercely competitive, but I also sensed a kindness in him that is usually only found in people who have known deep pain.  

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Third, Heather (Dorniden) Kampf is probably best known for her college 600m race where she fell, but got up and willed herself to the win. (The 600m is almost a sprint, so this is incredibly impressive). Heather, now known as “the queen of the road mile,” has had a good bit of success, but has finished 7th and 15th in the U.S. Olympic Trials, failing to make the team. She has battled through injuries and even penned an article titled Embracing the Struggle. I talked with Heather briefly at MCDC, and I could quickly tell that she has benefited from not being handed success. She is putting in the work to continue to improve. 

These runners are admirable, interesting, likable, and influential, in large part, because of their struggles, because of the way they faced adversity. Yet, the parents in the college admissions scandal, and "lawn mower parents" everywhere, seek to remove all adversity from the lives of their children. Professors now give more "As" than any other grade and the percentage of the top mark appears to be continually on the rise, even though I bet most professors would opine that the quality of student work product is declining overall. As a father of three young children and as a professor, I understand the urge to smooth the path - it is extremely difficult to watch people you care about struggle. Of course, there are times when we should step in and protect, but rather than shielding our children and students from all adversity, I believe we should teach them to deal with the inevitable struggles of life with integrity, humility, determination, and selflessness. As for Olivia Jade, I truly hope she takes her current adversity and uses it as a tool to shape positive character traits. 

June 16, 2019 in Ethics, Haskell Murray, Sports, Teaching, Wellness | Permalink | Comments (1)