May 05, 2010
Teaching Transactional Law: The Problems of Scale and Teacher Incentives
Posted by Erik Gerding

Here is another in my series of end-of-semester teaching posts: I’ve been thinking a lot about teaching transactional law since Karl Okamoto hosted a truly wonderful “Transactional Lawyering Meet” (a kind of moot court for business lawyers) at Drexel in March.  (Am I allowed to give a shout-out to the victorious Georgia team?) 

Before the meet, several business law professors (including 4 bloggers from this site and one blogger-in-law) met to discuss the state of teaching transactional law. It is a topic that has been covered in a number of conferences – including last year’s AALS Mid-year meeting as well as Tina Stark’s biannual conferences at Emory (with the next one coming up in a month). The Drexel crowd was an assembly of the converted. Everyone was a believer that business law teaching could benefit from a transactional focus. Some of the obvious “delivery systems” are drafting and negotiation simulations and even Karl’s innovative moot court for transaction lawyers.

But the converted did hotly discuss two recurrent problems, which I'll label the problem of scalability and that of professor incentives. The first problem deals with how to make a labor intensive style of teaching work in large law school classrooms. Moot courts, small drafting seminars, and business clinics are fantastic – in part because of the intimate setting. The best-trained young lawyers I encountered were in England – because lawyers there go through an apprentice system; a recent graduate basically sets up a desk inside a senior solicitor or barrister’s office and shadows her around for a year. That strikes me as an ideal way to learn. But it might not mesh well with the modern economics of many U.S. law schools – a topic discussed a few weeks ago in a Masters’ Forum on this site. If transactional law – or any of the Carnegie or ABA Best Practices reforms – are going to take deep root, they need to work also in the setting of classes of larger than 12 students.

The problem of scale dovetails with a second problem outlined by a more junior professor at the Drexel conference: many law schools would not reward the often Herculean efforts needed from a professor to make teaching with a transactional focus work. Trust me, as tough as grading 50+ end-of-the semester exams can be, it is a lot easier than providing detailed feedback on 12 student-drafted LLC operating agreements.

So what to do? Here are a few ideas:

1. Create a business-school-style case study clearing house: Business school professors get professional credit and filthy lucre (how is that for incentive) for authoring case studies. Why not adapt this to law schools? The Harvard Program on Negotiation has a good clearinghouse of negotiation simulations (although it would be even better if some of these simulations had more tie-in to detailed substance of business law courses). CALI has already made steps in this direction (although I haven’t test driven any of their lessons). Tina Stark is also soliciting materials for an Emory-based clearinghouse. (I don’t know how that is progressing). To make any clearinghouse work, professional incentives need to be considered. For example, professors might use download counts (just like ssrn or bePress) as a indication of their influence. Or we can consider a profit motive. (Heavens-to-Betsy!)

2. Learning from trial practice: This was Karl's theme for his mini-conference.  I’ve heard Therese Maynard (Loyola-LA) give several presentations (including one here at New Mexico) on how she has borrowed from trial practice teaching techniques in developing a new business planning course in which students have a number of different complex drafting assignments. The assignments track the life cycle of a venture capital deal, but seem relevant for any business law student. Like trial practice, her program is scalable (I think her course takes over 60 students a semester) and makes use of adjunct teachers -- with Therese as the coordinator. And the assignments and grading rubrics are off-the-shelf so that the course (a) can be graded, and (b) with a non-Herculean investment in adjunct or professor time.

Other ideas would be welcome – please comment below. It’s time we move from whether teaching transactional law is a good idea to how to make it work. And to make it work and to sell the idea to the not-yet-converted, we need to think about how to make it easier.  Which would mean saving professors from breaking their back re-inventing the wheel at every law school with every new course.

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