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 decision 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 you 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, thought 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

Image result for olivia jade college

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.

Image result for brave like gabe

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.

Image result for shane healy

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)

Friday, June 14, 2019

Advice for the New Business Law Prof-Part I

With the thought that more than a few of you reading this post may be starting off in a law teaching job for the first time in just a few short months, several of us on the BLPB have decided to offer some tips and general advice to you as you prepare.  Since I have recently spoken to a few new folks who are still in the process of choosing textbooks, I will start there.  

Set forth below are my reflections on important matters related to choosing an appropriate textbook.  If anything I say here does not make sense to you (or, of course, if you have additional or different thoughts), please leave a comment.  And if you already have ordered your textbook and started planning your course, please don’t rethink everything because of this post!

First and foremost, it is important to know the institutional teaching objectives at your law school.  How does the business law course you are teaching contribute to the school’s program of legal education?  What attributes of your course may help build the law school's infrastructure for institutional success?

Then, consider the learning objectives you have for your students—taking care to meet institutional objectives, but adding more scaffolding.  Apart from what the institution needs, what do you want to make sure you effectively impart to your students?  Consider theory, policy, and skills, as well as the scope and depth of substantive legal doctrine.

Those general matters aside, I next work from the premise that one should teach from his or her strengths.  So, engage in self-assessment to pinpoint those strengths.  My core advice?  Do not try to be someone you are not through the choice of your textbook (or in any other aspect of your teaching, btw).  If you are not a law and economics expert or disciple, a casebook founded on economic theory is likely not a good choice for you . . . .  Be yourself.  Isolate factors to look for in textbooks that will help you to teach from your knowledge, experience, and overall comfort zone.

Consult with colleagues in and outside your law school. If you are teaching a course that others in your institution also teach, find out what books they use and why.  If you are teaching a course that is part of a sequence (e.g., Business Associations and Advanced Business Associations), find out what books are used by others in your institution who teach the other course(s) in the sequence.  Ask a number of folks what their recommendations are, but understand that you can go your own way (as long as you work with colleagues in your school to help ensure that transitions among related courses will be smooth).

Having ordered review copies of books that take into account information gained from the foregoing, pick up the books and read them. Not the whole of each, of course. I start with the table of contents, if I haven’t already looked at that online.  I then read the first chapter.  Does this chapter set the tone for myfirst class?  Does it establish the core values of my course?  Finally, I pick a few key chapters—maybe one that covers a weak point in my knowledge of the subject matter, one that covers a particularly difficult aspect of the doctrine, one that covers a favorite topic, etc.  I use these readings to find the book that has the best vibe, all in.

Then, make your choice!  Know that it is not irrevocable.  Sure, it is a pain in the neck to organize a syllabus around a book and then give all that up and draft a syllabus incorporating readings from a new book.  Students seem to know if I am teaching from a suboptimal book.  That distraction can affect the learning process as well as the overall student-teacher relationship.

However you choose your textbook, make sure you have at least one copy in hand in plenty of time to create your syllabus.  Generating a syllabus is an entirely different—but related—process.  Perhaps one of us will write about that in a future post . . . .

June 14, 2019 in Teaching | Permalink | Comments (2)

Tuesday, May 28, 2019

A Summer of Change and a Grading Update

I'll start with the exciting news that my Business Organizations students were 48 for 48 in recognizing that LLCs are not corporations.  In fact, a number of my students specifically referred to "LLCs (NOT corporations) ..." in their exams. It's nice to be heard.  I believe that's at least three years in a row without such a mistake, and maybe longer. I have evidence, at least on this issue, repetition is effective.  

As for this summer, it is going to be an interesting one.  I have now finished grading my last classes as a part of West Virginia Univerity College of Law. As some readers may know, I have accepted the opportunity to join Creighton University School of Law as the next dean.  (For those wondering, my wife Kendra will be joining the Creighton Law faculty, as well, where, as was true at WVU, she will teach family law as a full professor.) After Kendra's run for Congress ended, she told me it was "my turn," and that I should pursue my goals.  I don't think either of us expected such a big change so quickly.  

Long before all of this became a reality, and after the campaign, we planned a family vacation to Europe for a month, so we'll be doing that with the kids -- Bulgaria, Germany, Italy, and Greece.  Buying and selling a house, moving across the country, and starting new jobs (and new schools for the kids) will all be part of the mix, too, but hey, what's life without some adventure?  

The fact that we're willing to leave should tell people just how much we believe in this opportunity. We have an absolutely incredible life already, with dear friends, amazing students, and a community of supportive and caring people.  (Not to mention an absolutely gorgeous location.) And yet we're moving.  I have high hopes and high expectations -- both for me and for my new institution.  It's worth stating clearly that we have loved West Virginia and we have had incredible opportunities to grow both personally and professionally. I want people to know that we are not so much leaving West Virginia as we are going to Creighton, a possibility I wouldn't have without my time here at WVU.

I very much appreciate that, and because of all we have learned and experienced, new adventures await.  

May 28, 2019 in Joshua P. Fershee, Law School, LLCs, Teaching | Permalink | Comments (2)

Wednesday, May 22, 2019

Exam Grading -- No LLCs as Corporations (So Far)

It has been kind of a unique end of the semester, and I am working feverously to get through my Business Organizations exams. I'm getting there.  So far, I have had zero exams reference a "limited liability corporation."  If this holds, it will be at least three years in a row.  

I have had a couple of folks refer to LLC veil piercing as piercing the "corporate" veil (another no-no), and I did have some other "corporate" references to LLCs (e.g., "an LLC's corporate formalities"), so we're not all the way there. But so far, I am seeing improvement, and I appreciate the effort.  

Here's hoping for 48 of 48 describing the LLC (as an entity) correctly.  I hope the rest of my colleagues are holding up well here in the home stretch. Good luck to all. 

May 22, 2019 in Business Associations, Corporations, LLCs, Teaching | Permalink | Comments (0)

Friday, May 3, 2019

Can Lawyers and Law Students Be (More) Effective Working and Learning Virtually?

I blogged two weeks ago about whether we were teaching law students the wrong things, the wrong way, or both. I’ve been thinking about that as I design my asynchronous summer course on transactional lawyering while grading asset and stock purchase agreements drafted by the students in my spring advanced transactional course. I taught the spring students face to face, had them work in groups, required them to do a a negotiation either in person or online, and am grading them on both individual and group work as well as class participation. When I looked at drafts of their APAs and SPAs last week, I often reminded the students to go back to old PowerPoints or the reading because it seemed as though they missed certain concepts or maybe I went through them too quickly— I’m sure they did all of the reading (ha!).  Now, while designing my online course, I’m trying to marry the best of the in person processes with some of the flipped classroom techniques that worked (and tweaking what didn’t).

Unlike many naysayers, I have no doubt that students and lawyers can learn and work remotely. For the past nine years, I have participated as a mentor in LawWithoutWalls, a mostly virtual experiential learning program started by University of Miami professor Michele DeStefano. Also known as LWOW, the program matches students from around the world with business people and practicing lawyers to develop a project of worth over sixteen weeks. Team members meet in January in person and never see each other in person again until April during a competition that is judged by venture capitalists, lawyers, entrepreneurs, and academics. I mentored a team of students from Bucerius in Germany, Wharton in Pennsylvania, and the University of Miami. Banking behemoth HSBC sponsored our project and staffed it with lawyers from Singapore, Canada, and the UK. Other mentors on the team hailed from Spain and the UK. On any given week, 7-10 people joined Skype calls, chatted in WhatsApp, drafted on Google Docs, and accessed Slack. They attended mandatory webinars weekly via Adobe Connect on developing business plans, pitching to VCs, and working with clients. Seventy percent of the people on the seventeen teams spoke languages other than English as the first language. 

How did this virtual experience work? Extremely well, in my view. After some growing pains, students adjusted quickly as did the business partners, who are used to setting up conference calls and working across borders. Some of the winning teams developed projects that provided virtual reality training on implicit bias for police officers; informed consumers about food freshness to combat food waste; and organized health information for foster care children on a blockchain-powered platform. Humble brag- my team won best overall project by developing a solution to use blockchain and smart contracts in syndicated lending that has the potential to save the bank almost 2 million per year. I also mentored last year’s winner, Team Spotify, with students from Miami, Colombia, and Chile and lawyers housed in Sweden, California, and New York. Each year, teams do almost all of this hard work remotely, across time zones, and with language differences. Students collectively interview hundreds of subject matter experts over 16 weeks, and the vast majority of those interviews take place via phone or video and with people in different countries. Other sponsors for LWOW included Accenture, White and Case, Pinsent Mason, Microsoft,  Cozen O'Connor, LegalZoom, Eversheds Sutherland, LatAm Airlines, and Legal Mosaic-- all companies and law firms that see the benefit of these skill sets.  Significantly, every year, a cohort of teams does all of the work virtually, never meeting in person for a kickoff. That virtual team winner competes in person with the traditional teams each April, and often wins the whole competition. Clearly, these students develop special skills by necessity. I plan to learn from those experiences as I design my course.

My experience with LawWithoutWalls and as a former compliance officer (where we often did training online and via video) makes me optimistic about online learning and working. In my summer course, I will have students work in groups, where they will use the latest virtual teaming tools. I will have live office hours via Skype, Zoom, or FaceTime, and I will require that some of the groups do their meetings via video as well to have a connection outside of email. Students will draft and edit on community bulletin boards. They will post their own video presentations and "webinars" geared toward fictitious business clients. Working collaboratively and creatively are key skills in the real world, and they will be key in my class. 

But there is a lot of resistance in both the legal community and academia regarding the online world. Last week, I attended a seminar at a law firm and met a member of the Florida Board of Bar Examiners. I asked his opinion on the state of students and young lawyers. I was particularly interested in his thoughts because he’s also a partner at a large law firm in our state. Like some quoted in my prior post, he believes that online coursework is a poor substitute for face to face learning. He further opined that when people don’t work in offices, they miss the camaraderie of being around peers and their work suffers. These are valid concerns. Many lawyers are unhappy in general, and the way people hide behind digital devices (even when in the same room/office) can lead to isolation, depression, and poor networking and social skills. 

But these drawbacks should not doom online learning and remote working. Most of my graduating 3Ls will take their bar prep courses online. They claim that it makes no sense to drive to campus “just to watch a video of a professor speaking.” They also like the idea of being able to rewind videos to take notes. The indicated that they will meet up with friends when they want to study together and may even come on campus to watch their online coursework for a sense of community. But significantly, they don’t see the need to learn in the traditional ways. Personally, I love good online courses but I also love the ability to have face to face interaction with teammates- even if that’s via video. Being in the same physical space also allows for chance interactions that can lead to enriching conversations. On the other hand, sometimes there's no choice. Many readers may remember that years ago, in harder economic times, companies cancelled non essential business travel and people got used to video meetings. Many employers now interview candidates by Skype first before bringing them in. Learning and working virtually is no longer a novelty. Some of our students  will work in co-working spaces for firms or companies where everyone works from home. 

Change is coming and in many places, already here. Law professors must prepare students to practice in this new world while not sacrificing pedagogical gains. This requires training on project management and effective communication with team members— all non-substantive topics and that will give many people pause. We also need to make sure that students know how to communicate with clients and employers face to face in business and social settings. Some professors will say- correctly- that they have enough to contend with making sure students understand the law and can pass the bar. But, for those of us interested in online learning, we need to do more. We have to make sure that we prepare students for both the "hard" and "soft" skills.  Most important, we need to make sure that these online courses have the rigor of traditional classes-- US News is watching.

I’m open to suggestions of what has worked for you and what hasn’t so please feel free to comment below or email me at mweldon@law.miami.edu.

May 3, 2019 in Current Affairs, Jobs, Law Firms, Law School, Lawyering, Marcia Narine Weldon, Negotiation, Teaching, Technology, Web/Tech | Permalink | Comments (2)

Monday, April 29, 2019

Reflections on the Life of a Smiling, Selfless Educator: Rivers Lynch

Rivers

On Sunday morning, Rivers Lynch, a beloved member of my wife’s side of our family, died suddenly of natural causes. Rivers spent his professional life as an educator – over four decades as a teacher, an administrator, a driving instructor, and a coach of various sports. In 2007, he was inducted into the South Carolina Athletics Coaches Association Hall of Fame for his many successful seasons as a tennis coach, including 11 state championships. Even this year, at the age of 72, he continued to coach the Myrtle Beach High School tennis team.  

The outpouring of support on social media has been incredible to witness. Rivers, quite literally, positively affected the lives of thousands of students, colleagues, neighbors, and family members. A few of the countless posts include words like: “I’ve yet to meet anyone so kind and caring.” “Every single person was special to him.” “Truly humble…always greeting me with a smile and making me feel welcome.” “The truest most genuine person I’ve ever had the honor to know.” “A father like figure to all of us.” “A beautiful soul…that smile always brightened my day.” “Touched so many lives.” “Always championed students who were ‘underdogs.’” “My favorite teacher.” “The hero most of us didn’t deserve.”

How did Rivers make such a positive difference in the lives of so many people?

Three interrelated things spring to mind. A Genuine Smile. The headline for Myrtle Beach Online noted what so many people remember about Rivers – that he was “always smiling.” I can’t remember Rivers without his ear to ear smile that absolutely lit up every room he entered. Focused on Others. Rivers won numerous awards as an educator, but he always turned the attention to the success of others. He had well over 3000 Facebook friends (and many more in-real-life-friends), and he constantly celebrated the achievements of his students, colleagues, and family members. He was truly interested in the details of your life, had a remarkable memory for past conversations, and was always fully present. Relentlessly Positive. Rivers was an optimist. While I heard that he could be tough as a coach when the time called for it, he preferred to uplift. Sadly, at least one study shows that pessimism pays in the study of law, but Rivers’ approach to life always reminded me of the deeper benefits of focusing on the positive.

On June 22, 2010, I met Rivers for the first time. On that day, I drove from Charleston to North Myrtle Beach to meet my girlfriend’s extended family. I already knew Katie was the woman I wanted to marry, but I was a bit intimidated at the thought of walking into their family reunion at Rivers’ home. I convinced my youngest brother Sam to join me for support, and we stopped at an outlet mall where we bought him a respectable, collared shirt for the occasion. As I approached Rivers’ front door, I started to sweat even more than typical in the South Carolina summer heat. But, as soon as Rivers opened the door--beaming and offering some spectacular lemonade--I instantly felt welcomed. I remarked to my now mother-in-law that in just a few hours Rivers made me feel like his best friend. Reading over the Facebook comments again, it seems like Rivers made a lot of people feel that way, and he somehow managed to uplift thousands of people in a completely authentic manner.

I cannot fully explain how Rivers positively affected so many people during his time as an educator, but his life reminds me of the power of a genuine smile, the strength of selflessness, and the benefits of an optimist outlook. 

April 29, 2019 in Haskell Murray, Service, Sports, Teaching | Permalink | Comments (1)

Friday, April 19, 2019

Are We Teaching Law Students The Wrong Things, The Wrong Way, or Both?

It's that time of year again. Many states have released February 2019  bar passage rates. Thankfully, the rates have risen in some places, but they are still at suboptimal levels. Indeed, the July 2018 MBE results sunk to a 34- year low. A recent article on law.com lists some well-known statistics and theories, explaining, in part:

Kellye Testy, president of the Law School Admission Council . . .  suspects the falling pass rates are the results of a combination of factors, the most obvious being the lower credentials of incoming students. The declining quality of public education—meaning an erosion of the reading and writing foundations children develop in elementary and high schools—may also be a contributor, she said. Moreover, the evolving way that law is taught may explain why today’s law graduates are struggling more on the bar exam, said Testy, whose organization develops the LSAT. Professors now put less emphasis on memorizing rules, and have backed off on some of the high-pressure tactics—like the Socratic method—that historically dominated the classroom. “The way we used to teach wasn’t as good for caring for the student, but it made sure you could take a closed-book exam,” she said. “You knew the doctrine. It was much more like a bar exam, in some ways. Today, when you go into a classroom, it’s all PowerPoint. The teachers give them an outline, the students are on computers. There’s a different student approach and a different faculty approach.” The fact that so many law graduates now take bar preparation courses online rather than in person is another avenue worth examining for a potential correlation to falling pass rates, said Judith Gundersen, president of the National Conference of Bar Examiners. “You used to have to go to a lecture and show up every day,” she said. “Now so much of it is online. People are wondering whether that’s changing how people prepare, because there just isn’t that communal aspect where, ‘I have to prepare in case I get called on.’”

I'm not sure how I feel about these assertions. I agree that many students lack some of the key critical thinking and writing skills needed to analyze legal problems. I also see far fewer professors using the strict Socratic method and more allowing computers in class. I allow computers for specific activities but not throughout the class. I also employ more of a modified Socratic method, use powerpoint, and often post it in advance with questions for students to answer prior to class so that we can spend time in class applying what the students have learned. Am I doing a disservice to my students with a flipped classroom? Do we need to go back to rote memorization and cold calling students for the bar passage rates to rise? And if so, will that make our students better lawyers?

I remember how difficult it was to take the Florida bar after three years of law practice in New York. The rote memorization helped me pass the bar exam while working a full time job and caring for an infant as a single mother. But it didn't make me a better lawyer. Having worked for three years, I remember slogging through bar study thinking that what I was learning in bar prep had little to do with what I actually did in practice. When I prepared for the New York and New Jersey bars, I went to classes live but some were in a classroom via video. I'm not even sure that purely online courses were an option back in 1992. When I moved to Florida and studied for that bar, I used tapes in my car (yes, it was 1996). I had tried the live courses for a few days and realized that my time was better spent reciting the rules of evidence to my son in lieu of nursery rhymes. I passed three bars using two different methods but I wonder how well I would have done with an online version, the way most students study for the bar now. 

I no longer teach courses tested on the bar, but when I did, I had the perpetual conflict-- how do I make sure that the students pass the bar while instilling them with the knowledge and skills they will actually need in the real world? I see now how some of my transactional lawyering students dread going to the bar prep classes offered during the semester. But they also consider these classes a necessity to pass the bar even through they will engage in full time bar prep upon graduation. Does the proliferation of these law school bar prep classes mean that the doctrinal professors aren't teaching the students the way we learned? Or does it mean that that the students are no longer learning the way we did? I don't have the answers. 

But these articles do have an effect on how and what I teach. Under ABA Standard 306,  law schools can offer up to one-third of their credits online, including up to ten credits for first-year coursework. As I prepare to teach my contract drafting and negotiation class asynchronously online for the first time this summer, I'm learning about presenting information in short, digestible chunks for the students- no more than 15-20 minutes per video, and preferably even shorter, I'm told. I'm also reviewing the conflicting evidence about whether online courses are a help or a hindrance.

Some of my students have taken many courses online as undergraduates. As a compliance officer, I required employees to take courses online and did live training. Personally, I like taking online courses. But I don't know enough about how well students retain the information and how well they learn to use key skills to serve clients. I'm fortunate, though, to have excellent instructional designers working with me who understand adult learning much better than I do. I'm convinced that more students will seek online courses and more schools will adopt them as a way of earning more revenue through developing programs for working professionals and JD students who need more flexible schedules. This means many more of us may need to prepare for this new way of teaching and learning.

April 19, 2019 in Current Affairs, Law School, Lawyering, Licensing, Marcia Narine Weldon, Teaching | Permalink | Comments (1)

Friday, April 12, 2019

Why Businesses Should Not Ignore the Operation Varsity Blues Scandal

As a former compliance officer who is now an academic, I've been obsessed with the $25 million Varsity Blues college admissions scandal. Compliance officers are always looking for titillating stories for training and illustration purposes, and this one has it all-- bribery, Hollywood stars, a BigLaw partner, Instagram influencers, and big name schools. Over fifty people face charges or have already pled guilty, and the fallout will continue for some time. We've seen bribery in the university setting before but those cases concerned recruitment of actual athletes. 

Although Operation Varsity Blues concerns elite colleges, it provides a wake up call for all universities and an even better cautionary tale for businesses of all types that think of  bribery as something that happens overseas. As former Justice Department compliance counsel, Hui Chen, wrote, "bribery. . .  is not an act confined by geographies. Like most frauds, it is a product of motive, opportunity, and rationalization. Where there are power and benefits to be traded, there would be bribes." 

My former colleague and a rising star in the compliance world, AP Capaldo, has some great insights on the scandal in this podcast. I recommend that you listen to it, but if you don't have time, here are some questions that she would ask if doing a post mortem at the named universities. With some tweaks, compliance officers, legal counsel, and auditors for all businesses should consider: 

1) What kind of training does our staff receive? How often?

2) Does it address the issues that are likely to occur in our industry?

3) When was the last time we spot checked these areas for compliance ? In the context of the universities, were these scholarships or set asides within the scope of routine audits or any other internal controls or reviews?

4) What factors or aspects of the culture could contribute to a scandal like this? What are our red flags and blind spots? Do we have a cultural permissiveness that could lead to this? In the context of the implicated universities, who knew or had reason to know?

5) How can we do a values-based analysis? Do we need to rethink our values or put some teeth behind them?

6) How are our resources deployed?

7) Do we have fundamental gaps in our compliance program implementation? Are we too focused on one area or another?

8) Are integrity and hallmarks of compliant behavior part of our selection/hiring process?

Capaldo recommends that universities tap into their internal resources of law and ethics professors who can staff  multidisciplinary task forces to craft programs and curate cultures to ensure measurable improvements in compliance and a decrease in misconduct. I agree. I would add that as members of the law and business community and as alums of universities, we should ask our alma maters or employers whether they have considered these and other hard questions. Finally, as law and business professors, we should use this scandal in both the classroom and the faculty lounge to reinforce the importance of ethics, internal controls, compliance with law, and shared values.

 

April 12, 2019 in Business School, Compliance, Corporate Governance, Corporations, CSR, Current Affairs, Ethics, Law Firms, Law School, Lawyering, Management, Marcia Narine Weldon, Sports, Teaching | Permalink | Comments (0)

Friday, March 1, 2019

Loyola University Chicago School of Law is seeking applications for Co-Director of the Business Law Clinic/ Executive Director of the Business Law Center

The Business Law Clinic (Clinic) is part of a comprehensive curriculum in transactional law that is comprised of the Clinic, the Business Law Center (Center) and certificate and degree conferring programs. The Clinic, established in 1999, offers students a unique opportunity to develop essential lawyering skills in a professional, interactive environment. Loyola seeks a dynamic Clinic Co-Director/Center Executive Director to work collaboratively with the Clinic Co-Director and the Director of the Business Law Center to provide strategic leadership, teach the Clinic class, supervise student work with clients, and to assist the Center Director in the development of the business and transactional law curriculum, scholarly conferences and programming.

The Co-Director/Executive Director will serve as the Randy L. and Melvin R. Berlin Clinical Professor of Law that is a presumptively renewable long-term contract position with voting privileges within the Loyola University Chicago School of Law. Loyola University Chicago School of Law is a student-focused law center inspired by the Jesuit tradition of academic excellence, intellectual openness, and service to others. Our mission is to educate diverse, talented students to be responsible leaders in a rapidly changing, interdependent world, to prepare graduates who will be ethical advocates for justice and the rule of law, and to contribute to a deeper understanding of law and legal institutions through a commitment to research, scholarship and public service.

The Clinic is a focal point of student development of essential lawyering skills in a professional, interactive live-client environment. Students work under the direct supervision of the Co-Directors to represent entrepreneurs and small business owners, as well as individuals who are seeking legal assistance with not-for-profit organizations. The not-for-profit clients represented by the Clinic include organizations that encompass animal welfare, sports clubs, museums, community organizations, religious organizations, etc. The for-profit clients are entrepreneurs, inventors, service providers, and web-based business owners who are involved in a variety of industries. The Clinic Co-Directors work collaboratively to provide supervision and professional oversight of the work completed by law student clinicians in addition to teaching the Clinic classroom component. Business Law Center The Center is the hub for School of Law’s curriculum, research and programming related to business and transactional law. The Center is led by a nationally and internationally renowned Director that is a full-time tenured faculty member along with other esteemed scholars in business law. The Center Director works in close collaboration with the Business Law Clinic to ensure that students have access to a full and wide breadth of educational opportunities and programs.

The Center is a part of larger initiatives across the University, the Quinlan School of Business and the Chicago community that seek to implement Loyola’s social justice mission as it relates to providing access to business ventures and initiatives to underserved and minority communities. The Center includes the Institute for Investor Protection, The Rooftops Project, the JD Certificate in Transactional Law, and the Master of Laws (LLM) in Business Law degree.

Position Essential Duties and Responsibilities: The duties and responsibilities of the Co-Director/Executive Director include, but are not limited to the following: Strategic planning for the future direction of the Clinic for continued growth and development; Serve as the external advocate and collaborator for the Clinic in its work with the Center, the Quinlan School of Business and other community partnerships; Assist in the administration of the Clinic and the development of the Center; Supervision of law students, summer interns, and fellows in skill development and client representation including supervising students in client meetings, drafting contracts and other legal documents, conducting legal research, determining client legal issues, and advising and counseling clients; Teach and assist in the development of curriculum as part of the classroom component for the Clinic, the Transactional Law Certificate and the LLM in Business Law; Mentor and act as faculty advisor to student members of the Business Law Society; Assist the Center Director in organizing conferences, workshops and seminars in business and transactional law; and Engaging in scholarly research (preferred but not required).

Qualifications: The candidate must have the ability to engage successfully and work collaboratively with a diverse group of stakeholders including the Clinic Co-Director, the Center Director, students, clients, administrators, and community members. Excellent judgment, including sensitivity to the needs of clients, cultural nuances and confidential information. A commitment to serving not-for-profit clients and underserved and minority communities. Experience as a clinician or former clinical teaching fellow in a business/transactional law clinic or as a lawyer with significant practice experience in business law. Ability to work independently with minimal supervision and as part of an interprofessional team. Demonstrated commitment to detail and a process-oriented approach to supervision of clinic work. Demonstrated ability to organize and manage conferences, workshops and seminars. Flexible work attitude, ability to work effectively in a fast-paced environment with a small staff and frequent student turnover (due to semester long courses and graduation). Bachelor's degree and a JD from an ABA accredited law school degree required. Admission/eligibility for admission to the Illinois Bar. Adept user of internet, case management systems, e-mail and other office automation systems.

Selection Process: Review of applications will begin March 1, 2019 and continue until the position is filled. The position will begin on July 1, 2019. Applicants are to submit (1) a letter of interest describing the candidate’s reasons for applying for the position, (2) a curriculum vitae, (3) samples of scholarly or other written work if available, and (4) the names and contact information of three individuals prepared to provide professional references. Applications should be submitted through Loyola’s Careers website at https://www.careers.luc.edu/postings/10391. Inquiries should be directed to Professor Steven A. Ramirez, Director of Business Law Center, Loyola University Chicago, 25 E. Pearson, Chicago, IL, 60611, sramirez3@luc.edu.

Loyola University Chicago is an Equal Opportunity/Affirmative Action employer with a strong commitment to hiring for our mission and diversifying our faculty. As a Jesuit Catholic institution of higher education, we seek candidates who will contribute to our strategic plan to deliver a Transformative Education in the Jesuit tradition. To learn more about LUC’s mission, candidates should consult our website at www.luc.edu/mission/. Applications from women, minorities, veterans, and persons with disabilities are especially encouraged and preference will be given to candidates who can mentor female law students and those from communities that are underrepresented in the legal profession. Candidates are encouraged to consult our website to gain a clearer understanding of Loyola's mission at www.luc.edu/mission/index.shtml and our focus on transformative education at www.luc.edu/transformativeed/.

March 1, 2019 in Clinical Education, Jobs, Law School, Lawyering, Teaching | Permalink | Comments (0)

Friday, January 25, 2019

Dean Search Announcement- University of Miami School of Law

Dean, School of Law University of Miami

The University of Miami invites nominations and applications for the position of Dean of the School of Law. The next Dean should be an innovative thinker and approachable leader who welcomes the opportunity to articulate a vision for the growth of a law school that builds on its long history of excellence. The University of Miami, considered among the top tier institutions of higher education in the U.S. for its academic excellence, superior medical care, and cutting-edge research, is the largest private research university in the southeastern United States. The University comprises eleven degree-granting schools and colleges, which are Architecture, Arts and Sciences, Miami Business, Communication, Education, Engineering, Law, the Miller School of Medicine, the Patricia and Philip Frost School of Music, Nursing and Health Studies, and the Rosenstiel School of Marine and Atmospheric Science. The core of the University is its 2,660 full-time faculty housed in three academic campuses within the greater Miami area. The University receives over $360 million annually in external research funding and has been classified as a Doctoral University with Highest Research Activity (R1) by the Carnegie Commission. We strive to create an environment where everyone contributes to making UM a great place to work through our values of Diversity, Integrity, Responsibility, Excellence, Compassion, Creativity, and Teamwork (DIRECCT).

The University of Miami School of Law, located on the 260-acre main campus, has over 100 faculty members and an enrollment of about 1200 students. In addition to the juris doctorate degree, the Law School offers a range of LLM degree programs, from its nationally ranked tax program to the innovative Entertainment, Arts, and Sports Law. The Law Schools offers joint degrees with several of the university’s premier graduate schools. The Dean, reporting to the Executive Vice President & Provost, is the School of Law’s chief academic officer with overall responsibility for its academic programs, operating budget, personnel management, strategic planning, public relations, and fundraising. The Dean is also the School of Law’s principal representative to the University, alumni, and the legal community. The School is seeking a person with a national/international reputation, high energy, enthusiasm, and vision to lead the faculty. The School consists of an interdisciplinary group of scholars, creative faculty and practitioners. The candidate should be able to build upon this balance and continue to foster these values to encourage scholarship, develop innovative educational programs, and engage our local community. The successful candidate must demonstrate strong interpersonal, managerial and leadership skills, and be able to foster an internal culture of excellence. The position requires an individual who can lead effectively and manage a large and dynamic school in a multi-campus research university. Candidates must have credentials appropriate for a tenured appointment at the rank of professor. Leadership experience with responsibility for strategic management of personnel, programs, and resources is strongly desired. Review of candidates will begin immediately and continue until the position is filled. Applications must include a letter of interest and curriculum vitae. All inquiries, nominations/ referrals, and applications should be sent electronically and in confidence to: MiamiLawDean@kornferry.com 

January 25, 2019 in Jobs, Law School, Marcia Narine Weldon, Teaching | Permalink | Comments (0)

Tuesday, January 22, 2019

Back to Basics: The Reciprocal Nature of Agency and Partnership Relationships

In Business Organizations, I am in the early part of teaching agency and partnership. In my last class, we discussed Cargill, which is a fairly typical case to open agency discussions.  I like Cargill, and I think it is a helpful teaching tool, but I think one needs to go beyond the case and facts to give a full picture of agency. 

Of note, the case deals only with "actual agency" -- for whatever reason, the plaintiffs did not argue "apparent agency" or estoppel in the alternative.  A. Gay Jenson Farms Co. v. Cargill, Inc., 309 N.W.2d 285, 290 n.6 (Minn. 1981) (“At trial, plaintiffs sought to establish actual agency by Cargill's course of dealing between 1973 and 1977 rather than 'apparent' agency or agency by estoppel, so that the only issue in this case is one of actual agency. ”). I think this explains a lot about how the case turns out.  That is, the court recognized that to find for the farmer, there had to be an actual agency relationship.  

I don't love this outcome because one of the hallmarks of an agency relationship is its reciprocal nature. That is, once we find an agency relationship, the principal is bound to the third party and the third party is bound to the principal. In contrast, in a case of estoppel, the principal may be bound (estopped from claiming there is not an agency relationship), but that finding only runs one way. The principal still cannot bind the third party.  

This is a problem for me in Cargill. That is, I don't see a scenario where a court would bind the farmers to Cargill on similar facts. (I know I am not the first to make this observation, but it seemed worth exploring a bit.) As such, I don't think it can rightly be deemed an agency relationship.  

Assume the facts from the case to show agency, but suppose instead Cargill was suing the farmers because the grain prices had increased dramatically and that the farmers had a contract with Warren (the purported agent) to deliver grain at $5/bushel.  However, spot prices were now $15/bushel.  Warren had not paid the farmers for a prior shipment and did not have the ability to pay now. If the contract is with Warren, the farmers should be able to now sell that grain in the market and take the extra $10/bushel for themselves.  However, if Cargill were really the principal on that contract, Cargill would have a right to buy it at $5/bushel.  I just don't see a court making such a ruling on these facts.  

For what it's worth, I do think there is an estoppel argument here, and I think the Cargill court had ample facts to support finding Cargill a guarantor through other actions (promises to pay, name on checks, etc.), some of which might support an apparent authority argument, too. But because I don't see this relationship as an agency relationship as a two-way street, I don't think it can be an "actual agency" relationship. 

Incidentally, I see this reciprocal nature test as proper for partnerships, too.  That is, unless a court, on similar facts, would be willing to find a partnership where it works to the detriment of the plaintiffs, one cannot find a partnership.  Think, for example, of another classic case, Martin v. Peyton, 246 N.Y. 213 (N.Y. 1927).  There, creditors of the financial firm KNK sued KNK, as well as Peyton, Perkins, and Freeman (PPF) who had loaned KNK money. The claim was that PPF was not a mere lender, but had instead become partners of KNK because of the amount of control and profit sharing included in the loan arrangement.  If PPF were deemed partners of KNK, of course, PPF would be liable to the KNK creditors.  Here, the court determines that no partnership exists.  

While a reasonably close call,  I think this is right.  I don't think, based on a similar set of facts, that a court would find for PPF if the dispute were such that finding a partnership between PPF and KNK would reduce the amount KNK would pay its investors. If it can't run both ways, the partnership cannot exist.  I appreciate that in some cases, there simply is not a good analog to test the reciprocal nature of the relationship.  But where it's possible, I think this is a good test to determine whether there really is an agency or partnership relationship or if, instead, what we really have is a sympathetic plaintiff.   

 

January 22, 2019 in Agency, Business Associations, Joshua P. Fershee, Partnership, Teaching | Permalink | Comments (5)

Monday, January 21, 2019

Martin Luther King Jr., Love, Teaching, and Learning

image from pixabay.com

As we celebrate Martin Luther King Day today, I am moved to write a bit about him as a teacher.  Preachers (along with coaches and others who interact with us in various capacities in our lives) are teachers, of course.  They struggle, as educators, with similar challenges in their teaching to those that we face in curricular, co-curricular, and extracurricular teaching in law schools.

So many parallels are obvious.  But I want to focus on one small (and perhaps less obvious) thread in this post: love.  The choice of this focus derives from a David Brooks op-ed that I read a few days ago in The New York Times.  The column included a number of helpful facts and ideas relating to the connection between emotions and intelligence.  Perhaps one of the most poignant messages it conveyed was this one: "children learn from people they love, and . . . love in this context means willing the good of another, and offering active care for the whole person."  That rang true to me.  How, then, might love unite Dr. King with teaching and learning?

Of course, as many may recall, Dr. King (like other Christian clerics) preached about loving one's enemies.  But I somehow sensed there was a more palpable, direct, individual connection among Dr. King, love, teaching, and learning.  As I searched the web for specific references to substantiate and illustrate my hunch, I found online drafts of Dr. King's papers, including "Draft of Chapter IV, 'Love in Action.'"  In this draft, Dr. King focuses in on the simple words of Jesus spoken from the cross: "Father, forgive them, for they know not what they do."  (Luke 23:34)  As I read Dr. King's text, I understood that part of his message was that Jesus's words expressed love, and through that love, Jesus taught his followers.  By repeating and parsing Jesus's words and linking Jesus's love-through-forgiveness with the ignorance (or intellectual blindness) of those who did not love Jesus, Dr. King can be seen as more subtly making the same point that George Will made in his column: love and learning are intertwined.  Specifically, Dr. King wrote:

One day we will learn that the heart can never be totally right if the head is totally wrong.  This is not to say that the head can be right if the heart is wrong. Only through the bringing together of head and heart—intelligence and goodness—can man rise to a filfillment [sp] of his true essence.

(emphasis in the original)

I am not in the classroom this semester.  Nevertheless, I will have some student interaction, including most prominently with my research assistants.  I intend to carry the messages from the op-ed and Dr. King's writings in my heart and work to push them into practice.  George Will noted in his op-ed that "students have got to have a good relationship with teachers. . . . In good times and bad, good teachers and good students co-regulate each other."  I have always endeavored to relate to my students as best as possible despite age and other differences.  But I know that is hard to do in a large-class setting.  I also know there always are students who resist the entreaty to engage.  "The call for intelligence," Dr. King observed, "is a call for open-mindness, sound judgment, and love for truth."  Both instructor and student must share these values and observe them in the teacher-student relationship for the learning proposition to optimally succeed.

My sense is (and my anecdotal experience bears this out) that the results are worth the effort if instructors and students collaboratively invest in the teaching and learning process in this way.  Do you agree?  I am interested in your thoughts, consistent or inconsistent with the observations made here.

January 21, 2019 in Joan Heminway, Teaching | Permalink | Comments (2)

Friday, January 11, 2019

Best/Worst Depictions of M & A Deals on TV or At The Movies?

I wasn't one of those people who decided to become a lawyer after watching To Kill a Mockingbird, Witness for the Prosecution, and Twelve Angry Men, but they were some of my favorite movies. These movies and TV shows like Suits, How to Get Away with Murder, and Law & Order "teach" students and the general public that practicing law is sexy and/or confrontational. When I teach, I try to demystify and clear up some of the falsehoods, and that's easy with litigation-type courses. When I taught Business Associations, it was a bit tougher but we often used movies or TV shows to illustrate the right and wrong ways to do things. As an extra credit assignment, I asked students to write a critique of what the writers missed, misrepresented, or completely misunderstood.

This semester, I will be teaching a transactional drafting course where the students represent either the buyer or the seller of a small, privately owned business. I would like to recommend movies or TV shows that don't deal with multibillion dollar mergers, but I haven't been watching too much TV lately. I'm looking for suggestions along the lines of Silicon Valley (which past students have loved) or Billions. If you have any suggestions, please comment below or email me at mweldon@law.miami.edu.

 

 

 

January 11, 2019 in Corporations, Current Affairs, Film, Law School, Marcia Narine Weldon, Teaching, Television | Permalink | Comments (1)

Monday, January 7, 2019

Call For Proposals - Institute for Law Teaching and Learning Summer Conference

ILT&LHeader

CALL FOR PRESENTATION PROPOSALS

Institute for Law Teaching and Learning Summer Conference
“Teaching Today’s Law Students”
June 3-5, 2019
Washburn University School of Law
Topeka, Kansas

The Institute for Law Teaching and Learning invites proposals for conference workshops addressing the many ways that law professors and administrators are reaching today’s law students.   With the ever-changing and heterogeneous nature of law students, this topic has taken on increased urgency for professors thinking about effective teaching strategies. 

The conference theme is intentionally broad and is designed to encompass a wide variety of topics – neuroscientific approaches to effective teaching; generational research about current law students; effective use of technology in the classroom; teaching first-generation college students; classroom behavior in the current political climate; academic approaches to less prepared students; fostering qualities such as growth mindset, resilience, and emotional intelligence in students; or techniques for providing effective formative feedback to students.

Accordingly, the Institute invites proposals for 60-minute workshops consistent with a broad interpretation of the conference theme. Each workshop should include materials that participants can use during the workshop and when they return to their campuses. Presenters should model effective teaching methods by actively engaging the workshop participants.  The Institute Co-Directors are glad to work with anyone who would like advice on designing their presentations to be interactive.

To be considered for the conference, proposals should be one page (maximum), single-spaced, and include the following information:

  • The title of the workshop;
  • The name, address, telephone number, and email address of the presenter(s); and
  • A summary of the contents of the workshop, including its goals and methods; and
  • A description of the techniques the presenter will use to engage workshop participants and make the workshop interactive.

The proposal deadline is February 15, 2019.  Submit proposals via email to Professor Emily Grant, Co-Director, Institute for Law Teaching and Learning, at emily.grant@washburn.edu.

January 7, 2019 in Call for Papers, Conferences, Joan Heminway, Teaching | Permalink | Comments (0)

Monday, December 17, 2018

New M&A Hornbook - Gevurtz & Sautter

image from images.westacademic.com

West Academic Publishing has just released a new mergers and acquisitions hornbook co-authored by dear friends and business law prof colleagues Frank Gevurtz and Christina Sautter.  I had known that the book was in the offing, but I just got a note from Frank on Saturday confirming its publication and availability.  Here is the synopsis from West:

Gevurtz & Sautter’s Hornbook on Mergers and Acquisitions provides a comprehensive exploration of this important topic. Written in a casual style designed to engage the reader, the book clarifies and critiques critical doctrine. In addition to covering corporate laws governing mergers and acquisitions, the book explores securities, tax, and antitrust laws, as well as addressing the business, financial, and practical lawyering aspects of mergers and acquisitions.

I know these two to be folks with solid backgrounds and interesting insights in this area.  I have requested my online review copy.  Perhaps some of you will want to do that, too.  And for those without that privilege who want this in their libraries, you can get it by clicking on the West Academic Publishing link at the beginning of this post or purchase it on Amazon here.

December 17, 2018 in Joan Heminway, M&A, Teaching | Permalink | Comments (0)

Monday, November 19, 2018

Teaching Corporate Fiduciary Duties, Again . . . .

Even after 19 years or so of teaching Business Associations courses, I still marvel at how hard it is to teach corporate fiduciary duty doctrine to my students.  A lot of my frustration comes from the amount of (perhaps not-so-useful) judicially instigated labeling involved under Delaware law, as the leading state in the area.  In particular, there is the narrowing of the duty of care to exclude both substantive duty of care claims and Caremark claims.  And then there is the matter of how to best describe the nature of the business judgment rule and how to describe the interaction of disclosure (candor) with the fiduciary duties of care and loyalty. And finally there is a lingering doctrinal question as to whether, in other jurisdictions, good faith, classified as a subsidiary component of the duty of loyalty in Delaware, may be a free-standing fiduciary duty or, in the alternative, foundational, penumbral, etc. to the fiduciary duties of loyalty and care  . . . .  Tough stuff.

Is anyone else out there suffering in the same way I do in teaching fiduciary duties in a Business Associations or Corporations class?  How do you handle the legal complexity/labeling questions?  I continue to want to improve in teaching this material.  I am all ears.

[Postscript:  I failed to note in the original post the helpful comments that I received on a longer-form, less specific post on this issue two years ago.  Feel free to look there for more and for some ideas folks shared about their teaching then.]

November 19, 2018 in Corporate Governance, Corporations, Joan Heminway, Teaching | Permalink | Comments (7)

Monday, October 29, 2018

Valuing and Visioning Collaboration - Thank You, Haskell!

Last Friday, I had the honor of being the keynote speaker for the 64th annual conference of the Southeastern Academy of Legal Studies in Business (SEALSB).  The invitation for this appearance was extended to me months ago by BLPB contributing editor Haskell Murray.  It was a treat to have the opportunity to mingle and talk shop with the attendees (some of whom I already knew).

The participants in SEALSB are largely business law faculty members teaching at business schools.  Having never before attended one of their meetings and as a bit of a "foreigner" in their midst, I wondered for quite a bit about what I should talk about.  Should I take the conservative route and present some of my work, hoping to dazzle the group with my legal knowledge (lol), or should I take a riskier approach and tell them what was really on my heart when I accepted Haskell's kind invitation?

I chose the latter.  I spoke for 15-20 minutes on "Valuing and Visioning Collaboration" between business law faculties in business and law schools and then took about 10 minutes of questions.  I started with the stories of two of my students--who could have been the students of anyone in the room.  Sarah took a business (accounting) major as an undergraduate and then came to law school; Ryan completed law school and went on to an MBA.  Both achieved lofty learning objectives and engaged in productive scholarship.  Both landed the jobs they wanted--ironically at the same firm (but years apart).  For me, the stories of these two students--what they did and how they became successful--illustrates both the power of business school law faculty and law school business law faculty working together and the high value in that relationship as to both teaching and scholarship.

I noted that, in these two (of the three principal) aspects of our common academic existence, teaching and scholarship, there are a number of ways that we can collaborate, offering examples of each:

  • conference organization and attendance;
  • work in interdisciplinary centers;
  • scholarship co-authorships;
  • co-teaching and teaching for each other;
  • co-currocular and extra-curricular programs (e.g., competitions and journals);
  • curriculum development; and
  • blogging.

I bet you can guess what blog I mentioned as an example in addressing that last collaborative method . . . .

I also noted, however, that there are barriers to these collaborations--or at least to some of them in certain contexts.  Those barriers may include: the fact that reaching across the aisle may be, for the relevant institutions and faculty members, new--that there is no history--and that it may therefore be more of a challenge to scope out and implement collaboration; differences in methodology, norms, and terminology; potential disagreements about institutional or personal credit allocation (including because of ego); questions about the necessary sources of funding and human capital; and overall, a lack of institutional or departmental incentives and rewards for collaboration (including credit in tenure and promotion deliberations at many schools).

Nevertheless, I offered that, even if institutions do not act to support collaborative efforts, we should strike out to overcome the barriers and engage with each other because the benefits are worth the costs.  To do so, however, we must both understand and truly appreciate the benefits of collaboration.  We also must be willing to take some attendant risk (or pick collaborative methods that avoid or limit risk).  I indicated that I plan to head down the collaborative path with increased focus.

To conclude my remarks, in the spirit of my invitation from Haskell to attend and speak at SEALSB, I encouraged the assembled crowd to join me on that collaborative journey, quoting from Patrick Lencioni's book The Five Dysfunctions of a Team: A Leadership Fable.  In that book, he wrote: "Remember teamwork begins by building trust.  And the only way to do that is to overcome our need for invulnerability." [p. 58; emphasis added]  Here, I invite all of you who teach business law in a business or law school setting to embrace vulnerability and reach across the aisle to work with your business law colleagues.  And if you already have done so, please leave a comment on the outcome--positive or negative.

October 29, 2018 in Business School, Conferences, Haskell Murray, Joan Heminway, Research/Scholarhip, Teaching | Permalink | Comments (3)

Wednesday, September 19, 2018

Business Law Professor Jobs - Posted in 2018/2019

I may update this list from time to time; feel free to e-mail me with additions. Looks like a pretty strong hiring season for business law. Updated 12/04/18.

Law School Professor Positions – Business Specialty Sought

  1. Barry University 
  2. Belmont University
  3. Campbell University
  4. Cardozo
  5. Case Western University
  6. Duke University
  7. Drake University (Director of the Entrepreneurial/Transactional Law Clinic)
  8. Drake University (Assistant, Associate, or Professor of Law)
  9. Drexel University
  10. Emory University
  11. Florida A&M University 
  12. Louisiana State University
  13. Mercer University 
  14. Pennsylvania State University, University Park
  15. Saint John’s University
  16. Seton Hall University
  17. Southern Illinois University Carbondale (Professor of Practice) (9/17/18 deadline or until filled)
  18. University of Alabama
  19. University of Arizona (International Business Law Focus) (Review begins 9/28/18)
  20. University of Arkansas, Fayetteville
  21. University of Buffalo
  22. University of California, Berkeley (initial review 8/15/18; accepted through 3/1/19)
  23. University of California, Davis
  24. University of California, Irvine
  25. University of Connecticut
  26. University of Kentucky
  27. University of Louisville
  28. University of Miami
  29. University of Nebraska
  30. University of New Mexico (Oil & Gas Focus)
  31. University of North Texas at Dallas
  32. University of Oregon (Business Law Clinic)
  33. University of Pittsburgh
  34. University of Richmond
  35. University of Saint Thomas (Miami)
  36. University of South Carolina
  37. University of Wyoming 
  38. Washington & Lee University
  39. Washington University (St. Louis)
  40. Willamette University

Legal Studies Professor Positions (Mostly Business Schools)

  1. Angelo State University
  2. California State Polytechnic University, Pomona (10/1/18 first consideration)
  3. California Polytechnic State University, San Luis Obispo (9/17/18 review begins)
  4. College of Charleston
  5. Community College of Philadelphia
  6. Contra Costa Community College (1/24/19 review closes)
  7. Dutchess Community College 
  8. James Madison University
  9. Kean University (Wenzhou, China) (posted 11/26/18)
  10. Indiana University, Bloomington (10/18/18 best consideration date) (and non-tenure track)
  11. Los Angeles Film School (Entertainment Business/Law Instructor)
  12. Mercy College (Director of Legal Studies)
  13. Morgan State University (opens 10/31/18 - closes 1/31/19)
  14. New Mexico University
  15. Prairie View A&M University 
  16. Princeton University (Fellowships) (11/14/18 deadline)
  17. Quinnipiac University
  18. Saint Joseph's University (Visiting Instructor)
  19. Saint Joseph's University (Assistant Professor)
  20. Santa Monica College
  21. State University of New York at Oswego (Instructor) (11/1/18 review begins)
  22. SUNY-Oswego (Instructor)
  23. Tulane University (Lecturers) and (Professors of Practice)
  24. University of the Bahamas (PHD in Law required)
  25. University of Georgia
  26. University of Michigan (10/15/18 guaranteed consideration)
  27. University of South Florida (Instructor) (JD/LLM or JD/PHD only)
  28. Virginia Tech (Instructor)
  29. Western Carolina University (10/1/18 review begins)

September 19, 2018 in Business Associations, Business School, Haskell Murray, Jobs, Law School, Teaching | Permalink | Comments (0)

Monday, September 17, 2018

Helping Business Law Students Develop Judgment, Wisdom . . .

I am still basking in the warm glow of having hosted a number of my fellow Business Law Prof Blog editors in Knoxville last week for our second annual "Connecting the Threads" event.  What a great day we had on Friday.  I could listen to these folks talk about business law until the cows come home (so to speak--no actual cows here!).

As BLPB readers may recall, the title of my paper for the 2018 "Connecting the Threads II" symposium is Lawyering for Social Enterprise.  I am sure that I will blog more on that topic in this space later--when my paper from the symposium has been published--but I want to offer here the three paragraphs of conclusion to the handout I prepared for the continuing legal education materials for the program, which focus on the need of judgment, discretion, and even wisdom.

Advising entrepreneurs, founders, promoters, and directors of social enterprises can be both satisfying and frustrating. The satisfaction most often comes from helping these businesses achieve financial success while also serving the public good. The frustration comes from the difficulty of the task in providing the necessary counsel—both in selecting the optimal legal form for the firm and in advising management as the business operates over time. These legal advisory contexts involving social enterprises are richly textured and immerse legal counsel in multi-level decision-making that impacts both internal and external business constituencies. The overall advisory environment implicates, among other things, hortatory text in the Preamble to the Model Rules of Professional Conduct providing that “[a] lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession's ideals of public service.” In lawyering for social enterprise, the legal advisor’s skill and public service responsibilities interact meaningfully.

Said another way, the complex decision-making involved in lawyering for social enterprise presents obvious challenges for business venturers and their legal counsel that involve not only baseline professional responsibility matters of competence (comprising doctrinal knowledge and solid, rational legal analysis), diligence (by offering patient and perceptive insights in helping the client to choose from among available alternatives), and communication (with the goal of ensuring informed client decision-making), but also the exercise of appropriate discretion and professionalism that require the savvy built from doctrinal, theoretical, and practical experience and leadership capabilities. As Professor Jeff Lipshaw has written in his intriguing and engaging book Beyond Legal Reasoning: A Critique of Pure Lawyering, “I am firmly convinced that great lawyers . . . bring something more than keen analytical skills to the table. They bring some kind of wisdom—a metaphorical creativity—that transcends disciplinary boundaries, both within the law and without.” That brand of wisdom is especially important in the kinds of questions that arise in lawyering for social enterprise.

Accordingly, as lawyers representing social enterprises, we need to develop knowledge of a complex set of laws and well-practiced, contextual legal reasoning skills. But that, while necessary, is insufficient to the task. We also must impose judgment borne of a deep understanding of the nature of social enterprise and of our clients and their representatives working in that space. Only then can we fulfill our professional promise as legal advisors: to provide clients with both “an informed understanding of . . . legal rights and obligations” and an explanation of “their practical implications.”

(footnotes omitted; hypertext links added).

Agree?  Disagree?  Can we help students (and inexperienced members of the bar) develop complex decision-making rubrics that incorporate judgment and wisdom?  Can we teach judgment, wisdom, and the like to law students?  Forever the optimist, I have an intuition that we can.

And with that thought in mind, I close with a picture of a UT Law student who gives me that hope.  He commented on my draft paper at the symposium on Friday.  He has been in my classroom for two semesters now (taking Advanced Business Associations, Corporate Finance, and Mergers & Acquisitions).  He spoke about why limited liability companies may be a better legal option for organizing social enterprise firms than corporations.  Proud moment for him and for me.  He aced it.

TransactionsBLPB2018(Adgent)

 

September 17, 2018 in Joan Heminway, Lawyering, Social Enterprise, Teaching | Permalink | Comments (0)